Citation Nr: 21077429 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-24 464 DATE: December 29, 2021 ORDER Entitlement to service connection for a heart disorder, claimed as congestive heart failure, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents in service. 2. The Veteran's heart disorder did not have its onset in service or within one year of service and is not etiologically related to service. 3. The Veteran's type II diabetes mellitus did not have its onset in service or within one year of service and is not etiologically related to service. 4. The Veteran's hypertension did not have its onset in service or within one year of service and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a heart disorder, claimed as congestive heart failure, have not been met. 38 U.S.C. §§ 1110, 1116, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1116, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1116, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1965 to February 1969. These matters come before the Board of Veterans' Appeals (Board) from a June 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran appeared at a virtual hearing before the undersigned. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, certain chronic diseases may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309. 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 an initial matter, the Board acknowledges that the Veteran has not been provided VA examinations for his heart disorder, type II diabetes mellitus, or hypertension. Such examinations, however, are not necessary for any of the claimed disorders. As explained below, the evidence does not establish an in-service incurrence, to include exposure to herbicide agents, or continuity of symptoms since service. Therefore, it is insufficient to trigger VA's duty to assist by providing a medical opinion regarding service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, a remand for VA examinations or opinions is not necessary as to the matters on appeal. At the outset, the Board acknowledges that post-service medical treatment records show that the Veteran has received diagnoses of congestive heart failure and coronary artery disease, type II diabetes mellitus, and hypertension as early as 2003. The Veteran's service treatment records (STRs), however, are silent for complaints or treatment related to a heart disease, type II diabetes mellitus, and hypertension. His enlistment and separation examination reports show that his endocrine system and heart were clinically evaluated as normal; his blood pressure readings were 120/70 and 110/76 respectively, see 38 C.F.R. § 4.104, DC 7101 n.1, and he denied ever having high blood pressure or any kind of heart related problems at service separation. Thus, there is no evidence in this case, nor does the Veteran contend, that his heart disorder, type II diabetes mellitus, or hypertension had their onset during his period of active service. Nor is there evidence to suggest the presence of any of the claimed disabilities until more than 30 years after the Veteran's service, and thus, there is no indication of continuity of symptoms since service or that the Veteran's heart disorder, type II diabetes mellitus, or hypertension manifested to a compensable degree within one year of his separation from military service in 1969. Accordingly, service connection for these disabilities cannot be granted on a direct basis based on in-service incurrence or on a presumptive basis for chronic diseases. However, the Veteran contends that he was exposed to herbicide agents during his active service and therefore, service connection should be granted on a presumptive basis. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if it becomes manifest to a degree of 10 percent disabling or more at any time after service. 38 C.F.R. § 3.307(a)(6). This presumption of service connection will attach, even in the absence of any evidence of the disease while in service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). There is no dispute that the Veteran did not serve in the Republic of Vietnam during the Vietnam Era; he does not contend he had Vietnam service and the record does not support such service. The Veteran's DD 214 and military personnel file indicate the Veteran served as gym attendant at Keesler Air Force Base in Biloxi, Mississippi. Accordingly, the Veteran does not meet the criteria for the presumption of herbicide agent exposure. Nevertheless, service connection may be granted on a direct basis if the evidence supports such a grant. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). A statement received from the Veteran in June 2017 indicates that he trained in near an area where orange and white drums were stored. He also reported that the grass in that area was brown, as if it had been burned. He further indicated that he noticed some of the drums were leaking and the odor reminded him of the smell that was present when the ditches around the base were sprayed. A June 2017 VA memorandum reveals that VA lacked the information the U.S. Army and Joint Services Records Research Center (JSRRC) requires to verify herbicide exposure at Keesler Air Force Base. In his Notice of Disagreement, received in July 2017, the Veteran generally referenced the Agency for Toxic Substances and Disease Registry (ATSDR) public health assessment, Naval Construction Battalion Center (NCBC), Gulfport, Mississippi, and cited to a NCBC Gulfport letter and factsheet. However, these referenced documents are not included in the record; nor did the Veteran otherwise indicate the relevance of the citations or provide any specific argument related to the citations, except to note that they support his claim for presumptive Agent Orange exposure at NCBC. In a later statement from the Veteran, he explained that he trained with the Naval personnel at the Naval Construction Battalion in Gulfport, Mississippi. In a February 2018 response to a request for information about possible Agent Orange exposure in Gulfport, Mississippi, the Compensation Service indicated that a list had been compiled by the Department of Defense (DoD) of locations outside Vietnam and the Korean DMZ where Agent Orange was used, tested, or stored. The February 2018 response noted the list did not contain names of individuals involved with Agent Orange. Additionally, the response stated there were no references to routine base maintenance activities such as range management, brush clearing, and weed killing as these were accomplished with commercial herbicides on all military bases worldwide and commercial herbicides do not fall under the regulations governing Agent Orange exposure at 38 C.F.R. § 3.307(a)(6)(i). Regarding the Veteran specifically, the February 2018 response further notes that the NCBC at Gulfport, Mississippi, was involved with storage and shipment of Agent Orange (AO) to Vietnam (from the port of Mobile, Alabama) prior to termination of AO use by the US military in 1971. The AO barrels were stored in a fenced-in security area two miles from NCBC. The remaining supplies held at NCBC were sent out to sea in 1977 and destroyed by a merchant marine incinerator ship. USAF personnel were responsible for the monitoring, re-barreling, and incineration operations from 1973 to 1977, not NCBC personnel. The Veteran was there prior to the 1973-1977 operation. There is no general acknowledgement of AO exposure based on service at NCBC, or based on attending an equipment operating school there, and VA has no evidence of long term-health effects among NCBC personnel based on the AO storage near the naval base. In addition, all liquids, from cooking oil to jet fuel, were shipped in 55-gallon drums, so the presence of such drums or barrels does not demonstrate the use of Agent Orange. All evidence shows that any herbicide use that the claimant or others observed, or were associated with, was the commercial variety, not Agent Orange. Based upon this February 2018 Compensation Service response, a March 2018 VA memorandum was issued, indicating that VA lacks the information the JSRRC requires to verify herbicide agent exposure at Naval Construction Battalion Center (NCBC) in Gulfport, MS. At his August 2021 Board hearing, the Veteran testified that he was exposed to Agent Orange at Keesler Air Force Base in 1965. He indicated that he was placed on a detail unloading barrels from a truck to a storage area. He reported that, at the time, he did not know what kind of chemicals were in the barrels or what was stored in the storage area. However, he contends that, since speaking with others, he now knows that Agent Orange was in the barrels. Other than the Veteran's lay assertions, there is no evidence in the record showing that he was exposed to herbicide agents, to include during training at the Naval Construction Battalion in Gulfport, Mississippi. While veterans are competent to testify to a wide range of matters relating to their own observations, the Veteran has not shown that he has the necessary expertise to identify chemical compounds such that his observation alone is sufficient to establish the presence of Agent Orange or his exposure to such herbicide agents. Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the Board acknowledges the Veteran's assertions regarding his exposure to herbicide agents, the Board finds that the Veteran's service records and the February 2018 response from Compensation Service are more probative and persuasive of the circumstances of the Veteran's active service. Accordingly, the Board finds the preponderance of the competent and credible evidence weighs against the Veteran's assertions of herbicide agent exposure. Therefore, the herbicide presumption is not for application in this case. See 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. As the presumption of herbicide agents is not for application and there is no competent and credible evidence of an in-service event, injury, or disease to establish service-connection on a direct basis for any of the claims on appeal, no further analysis is necessary. The Board finds that the preponderance of the evidence is against the claim for service connection for a heart disorder, type II diabetes mellitus, and hypertension. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; 4.3; Gilbert, 1 Vet. App. at 55. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.