Citation Nr: 21076403 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-62 780 DATE: December 23, 2021 ORDER Entitlement to service connection for a heart disability is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for a left eye disability is denied. FINDINGS OF FACT 1. A heart disability, including ischemic heart disease, did not manifest in service, did not manifest within an applicable presumptive period, and is unrelated to service. 2. Diabetes mellitus, type II did not manifest in service, did not manifest within an applicable presumptive period, and is unrelated to service. 3. Hypertension did not manifest in service, did not manifest within an applicable presumptive period, and is unrelated to service. 4. Erectile dysfunction was not manifest during service and is not attributable to service. 5. A left eye disability due to disease or injury was not manifest during service and is not attributable to service. CONCLUSIONS OF LAW 1. A heart disability, including ischemic heart disease, was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Diabetes mellitus, type II, was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. Erectile dysfunction was not incurred in or aggravated by service. 38 U.S.C. § 1110, 5107. 5. A left eye disability, other than refractive error, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.9. 6. Refractive errors are not diseases or injuries within the meaning of the law providing compensation. 38 C.F.R. § 3.303, 4.9 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1971 to May 1975. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) in December 2019. A transcript of the hearing is of record. During the hearing, the VLJ clarified the issues on appeal, elicited relevant testimony from the Veteran, and identified potential evidentiary defects. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. The Board remanded these matters in April 2020 to verify the Veteran's exposure to herbicides, specifically whether C-123 aircraft that were used to spray herbicide agents were based in U-Tapao U-Tapao Royal Thai Air Force Base during the Veteran's service, and to provide the Veteran an opportunity to complete a VA Form 21-4142 for private treatment records. Review of the claims file shows the Veteran was sent a development letter in April 2020 requesting more information relating to his exposure to herbicide agents at U-Tapao and onboard C-123 aircraft. This letter also included two copies each of the VA Form 21-4142 and the VA Form 21-4142a to obtain private medical records. The Veteran was sent another development letter in September 2020 to verify whether the Veteran was exposed herbicide agents by entering C-123 aircraft used to spray herbicides during Operation Ranch Hand. The Veteran responded to both development letters and provided additional statements and evidence to support his claim that he was exposed to herbicides during his service at U-Tapao and onboard C-123 aircraft. He did not complete and submit any provided VA Form 21-4142. In September 2020, VA issued an administrative decision formally finding that VA lacked information required to verify whether the Veteran was exposed to herbicides during his service in Thailand. Given the foregoing, we find the Board's April 2020 remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VLJ who conducted the December 2019 hearing has since retired, and the Veteran was sent a letter in September 2021 offering him the opportunity to present testimony at a new hearing before another VLJ. The Veteran has not responded to this letter, and the Board will proceed without a new hearing. SERVICE CONNECTION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service, even if there is no record of such disease during service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. §§ 3.307 (a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309 (e), it will be presumed that he was exposed to herbicides if he served in Vietnam between January 9, 1962 and May 7, 1975, unless there is affirmative evidence establishing he was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). In May 2010, VA published a "Compensation & Pension (C&P) Service Bulletin" which establishes "New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea." See Compensation and Pension Bulletin, New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea (May 2010); 2015 WL 65578 (Jan. 6, 2015). In explaining the need for the new procedures, the bulletin noted that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. VA determined that a special consideration of herbicide exposure on facts found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. It was noted that the majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. It was also noted that if a U.S. Air Force Veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on facts found or direct basis. This applies only during the period from February 28, 1961 to May 7, 1975. See May 2010 C&P Service Bulletin; Project CHECO Southeast Asia Report: Base Defense in Thailand. Thus, VA has acknowledged that there is "some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides." Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). 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. "Regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. If an individual described develops a disease listed in 38 C.F.R. § 3.309 (e), it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(v). Diabetes mellitus, hypertension, and ischemic heart disease are identified as chronic diseases under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service connection for heart disease, hypertension, diabetes mellitus, erectile dysfunction, and a left eye disability. The Veteran seeks service connection for a heart disability, hypertension, diabetes mellitus, erectile dysfunction, and a left eye disability. He primarily contends these disabilities are related to herbicide exposure during his service at U-Tapao Royal Thai Air Force Base, to include onboard C-123 aircraft. We note the Veteran broadly contends the left eye disability and erectile dysfunction are secondary to diabetes mellitus. Review of the VA and private medical records shows the Veteran currently has type II diabetes mellitus, hypertension, and "chronic ischemic heart disease." Regarding the heart disease, the Veteran had a myocardial infarction in November 2011 and has coronary artery disease. Medical records show ongoing treatment for erectile dysfunction. Regarding the left eye, private records show a history of central vein occlusion and macular edema, with cystoid macular degeneration. He was assessed with central retinal vein occlusion in February 2013, and an April 2013 record from the Bond Eye Associates confirms central retinal vein occlusion with a gradual onset beginning two months prior. The question for the Board is whether any of these disabilities is related to service, to include exposure to herbicides. After reviewing the evidence, the Board finds that service connection is not warranted for these disabilities. The Veteran may not be presumed to have been exposed to herbicides, the evidence suggests the Veteran was not exposed to herbicides during his service, and the preponderance of the evidence is against finding a nexus between any of the claimed disabilities and service. The Veteran's service personnel records contain a performance report for the period from June 1973 to June 1974 reflecting service at U-Tapao in the 307th Organizational Maintenance Squadron. The performance report and the Veteran's DD-214 shows his Air Force Specialty Code was 42350 and that he was an aircraft electrical repairman. The performance report indicates he was responsible for troubleshooting, removing, repairing, installing, and operationally checking aircraft and associated ground support equipment, electrical systems, and components. As set forth above, if a veteran served with the U.S. Air Force at a certain specified Royal Thai Air Force Bases, including U-Tapao, as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure is conceded on a facts-founds basis. In this case, the record shows that the Veteran was not an Air Force security policeman, security patrol dog handler, member of the security police squadron, member of a military police unit, or with a military police occupational specialty. Moreover, the Veteran's testimony at the December 2019 Board hearing suggests his duties did not otherwise serve near the U-Tapao base perimeter. The Veteran was an aircraft electrical repairman and testified that he worked primarily in a shop. He reported that he did not walk to the perimeter of the base while he served at U-Tapao and did not have any short-term temporary duty providing security around the perimeter of the base. He stated that the closest he came to the perimeter of the base was from the outside of the base where his bungalow was located, at least a couple of blocks from the perimeter of the base. He also reported that he did not see or hear that any chemicals or herbicides were sprayed during his service at U-Tapao. Given the Veteran's testimony, there is no evidence that his duties would have been in proximity to the fenced-in perimeters of U-Tapao, even assuming that herbicides were used in those locations. His testimony at the December 2019 Board hearing establishes that his duties did not bring him in proximity to the perimeter of U-Tapao. The Veteran has also not contended that he witnessed herbicides being used. Rather, his testimony shows he did not witness herbicides being used at U-Tapao. The Veteran's presence at U-Tapao is not enough to establish he was exposed to herbicides. The Board finds the Veteran's position was not commensurate with perimeter duties such that he would have been exposed to any herbicides used during his service at U-Tapao. The Veteran also contends he was exposed to herbicides onboard C-123 aircraft. Specifically, he asserts he was exposed to herbicide agents while entering C-123 aircraft used to spray herbicides in order to deliver packages. As noted above, 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. "Regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. 38 C.F.R. § 3.307 (a)(6)(v). Here, the Veteran served in the Air Force and was an aircraft electrical repairman. However, the evidence is against finding the Veteran "regularly and repeatedly" maintained or otherwise served onboard C-123 aircraft during his service. At the December 2019 Board hearing, the Veteran testified that he served as an electrical technician for KC-135 and B-52 aircraft at U-Tapao, and that he made approximately 8 to 12 package deliveries onboard C-123 aircraft while he served at U-Tapao. The Veteran did not serve as a flight, ground maintenance, or medical crew on a C-123 aircraft. Even assuming the Veteran's testimony regarding deliveries to the C-123 aircraft is credible, the Board concludes that such infrequent and brief deliveries do not reach the level of "regularly or repeatedly" operating, maintaining, or serving onboard a C-123 aircraft required by 38 C.F.R. § 3.307 in order for this presumption to apply. We also note that there is little indication that the 307th Organizational Maintenance Squadron was permanently assigned a C-123 used in Operation Ranch Hand. In September 2020 VA formally found that the Veteran's exposure to herbicides could not be verified. Furthermore, the Veteran's testimony shows he regularly or repeatedly maintained KC-135 and B-52 aircraft, but not C-123 aircraft. He did not regularly or repeatedly operate or otherwise serve onboard C-123 aircraft; rather, he has testified that he worked primarily in a shop while at U-Tapao. As such, the Board finds the Veteran may not be presumed to have been exposed to herbicide agents by virtue of operating, maintaining, or serving onboard a C-123 aircraft. Exposure to herbicides is not established. Thus, service connection for ischemic heart disease and type II diabetes mellitus on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is not warranted. Where herbicide presumptions do not apply, a Veteran may still attempt to establish service connection on a direct basis with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). We note that while hypertension, erectile dysfunction, and the Veteran's left eye disability are not on the list of herbicide presumptive disabilities, such would not have prevented the Veteran from establishing they were directly caused by herbicide exposure. However, there is no evidence of actual exposure to herbicides while the Veteran served in Thailand, to include onboard a C-123 aircraft. With little proof of actual exposure to herbicides, service connection for the claimed disabilities as due to herbicide exposure on a direct basis is not warranted. The Veteran is not presumed to have been exposed to herbicides, and there is otherwise no factual basis for finding he was exposed to herbicides during service. The Board has considered other theories of entitlement. Service treatment records are negative for any complaints, treatment, or diagnoses related to a heart disability, hypertension, erectile dysfunction, or type II diabetes mellitus. The May 1971 entrance examination shows left eye distant visual acuity was 20/100. The April 1975 separation examination shows a clinically normal evaluation of the eyes, chest, heart, vascular system, endocrine system, and genitourinary system. Blood pressure was 110/70. Left eye distant vision was noted as 20/200, corrected to 20/20. On the April 1975 Report of Medical History, the Veteran denied any history of pain or pressure in the chest, palpitations, heart trouble, high or low blood pressure, and sugar or albumin in the urine. While he did report eye trouble, no further elaboration was provided. The Board notes the Veteran had decreased visual acuity as shown on the separation examination. No further eye impairments are referenced in the service treatment records. The Veteran does not contend that any of the claimed disabilities were present during service. Rather he primarily asserts each manifested many years after separation and is due to herbicide exposures. When he testified at the December 2019 Board hearing he reported that diabetes mellitus and hypertension were diagnosed at about the same time when he was 40 years old, and that erectile dysfunction began approximately 8 to 10 years after diabetes was diagnosed. He reported his eye problems began in around 2008, and his heart disease was first identified in 2011. The available post-service treatment records generally corroborate the Veteran's reports regarding onset of each disability. The Veteran has provided multiple disability benefits questionnaires (DBQ) all dated February 2013. The diabetes mellitus DBQ reports 1991 as the date of diagnosis for diabetes mellitus. The heart disease DBQ shows the Veteran had a myocardial infarction and was diagnosed with coronary artery disease in 2011. The hypertension DBQ also shows 2011 as the date of diagnosis, although we note Private records suggest the Veteran began treatment for his left eye in 2013. The erectile dysfunction DBQ notes an onset in approximately 2007. Each claimed disability was first manifest and diagnosed well after he separated from service in 1975. While it is unlikely that each disability became manifest on the day they were first identified, there is no evidence suggesting that any relevant disability was manifest during service. Under these circumstances, the Board concludes that none of the claimed disabilities were present during the Veteran's service. Although ischemic heart disease, type II diabetes mellitus, and hypertension are chronic diseases, the Board finds the Veteran did not have characteristic manifestations sufficient to identify the chronic disease entities during service or within one year of separation. See 38 C.F.R. § 3.303 (b). Service treatment records show no manifestations sufficient to identify any of these diseases. The post-service medical records show the diseases first manifest many years after the Veteran separated from service. In addition, the Veteran has consistently reported each began many years after separation. At the December 2019 Board hearing he reported being diagnosed with diabetes and hypertension at about the same time when he was 40 years old, in approximately 1995. He reported heart disease was first identified during a 2011 hospitalization. While unlikely that these diseases first became manifest on the days identified, there is no evidence suggesting any were present during service or within one year of separation. The Veteran has generally contended that erectile dysfunction and a left eye disability are secondary to his other claimed disabilities, specifically diabetes mellitus. A February 2013 private disability benefits questionnaire attributes the erectile dysfunction to diabetes mellitus, and he has competently and credibly testified that his doctors have told him his eye problems are related to diabetes. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, service connection is not warranted for a heart disability, hypertension, or diabetes mellitus. There is no evidence either erectile dysfunction or a left eye disability is related to any of the Veteran's service-connected diseases or injuries, which include tinnitus, migraines, and right ear hearing loss. As such, there is no valid claim for secondary service connection under 38 C.F.R. § 3.310. Finally, regarding the Veteran's left eye disability, service treatment records show he entered service with decreased visual acuity in both eyes that had changed by the time he was provided the separation examination in April 1975. Refractive errors of the eyes are not "diseases or injuries" for disability compensation purposes under VA law. See 38 C.F.R. §§ 3.303 (c), 4.9; Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Absent superimposed disease or injury, service connection may not be allowed for refractive errors of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Parker v. Derwinski, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992). in the absence of some event or trauma, a refractive error is not a disease or injury for which compensation benefits may not be authorized. Although the separation examination does indicate the Veteran's left eye visual acuity decreased during service, there is no evidence of some superimposed disease or injury that manifested during service. The Veteran has generally asserted that his current left eye disabilities are secondary to his diabetes. However, service connection is not warranted for diabetes mellitus, secondary service connection is not warranted for eye disability caused or aggravated by diabetes. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claims for service connection for a heart disability, type II diabetes mellitus, hypertension, erectile dysfunction, and a left eye disability. Exposure to herbicides in Thailand has not been demonstrated, to include as due to service onboard C-123 aircraft. None of the disabilities were present during service, and the Veteran does not contend otherwise. The first documented manifestations of chronic diseases were many years after separation. To the extent erectile dysfunction and a left eye disability are secondary to diabetes mellitus, heart disease, or hypertension, service connection is not warranted for these three disabilities and no valid secondary claim has been advanced. The Veteran was not afforded a VA examination for any of the claims at issue in this appeal. No VA examination or opinion is necessary. Here, there is no evidence that any of the claimed disabilities manifested in or is otherwise related to service. The Veteran may not be presumed to have been exposed to herbicides, and there is no evidence otherwise establishing exposure to herbicide agents. There is sufficient competent medical evidence of record to decide the claim. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The preponderance of the evidence is against the claims. The benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.