Citation Nr: 21005859 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-67 224 DATE: February 2, 2021 ORDER Service connection for diabetes mellitus is denied. Service connection for diabetic retinopathy is denied. Service connection for left upper extremity peripheral neuropathy is denied. Service connection for right upper extremity peripheral neuropathy is denied. Service connection for left lower extremity peripheral neuropathy is denied. Service connection for right lower extremity peripheral neuropathy is denied. Service connection for cataracts is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam era, and exposure to herbicide agents is not otherwise shown. 2. The Veteran’s diabetes mellitus did not have its onset in service, was not shown within one year after separation from service and is not otherwise related to service. 3. The Veteran’s diabetic retinopathy did not have its onset in service or for many years thereafter and is not otherwise related to service or a service-connected disability. 4. The Veteran’s left upper extremity peripheral neuropathy did not have its onset in service or for many years thereafter and is not otherwise related to service or a service-connected disability. 5. The Veteran’s right upper extremity peripheral neuropathy did not have its onset in service or for many years thereafter and is not otherwise related to service or a service-connected disability. 6. The Veteran’s left lower extremity peripheral neuropathy did not have its onset in service or for many years thereafter and is not otherwise related to service or a service-connected disability. 7. The Veteran’s right lower extremity peripheral neuropathy did not have its onset in service or for many years thereafter and is not otherwise related to service or a service-connected disability. 8. The Veteran’s cataracts did not have its onset in service or for many years thereafter and is not otherwise related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetic retinopathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for service connection for cataracts have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1963 to April 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2019 video conference hearing. These matters were previously before the Board in June 2020 when they were remanded for additional development. Service Connection 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for diabetic retinopathy. 3. Entitlement to service connection for left upper extremity peripheral neuropathy. 4. Entitlement to service connection for right upper extremity peripheral neuropathy. 5. Entitlement to service connection for left lower extremity peripheral neuropathy. 6. Entitlement to service connection for right lower extremity peripheral neuropathy. 7. Entitlement to service connection for cataracts. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). In addition, certain chronic diseases may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed more than one year after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 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 early-onset 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). The Veteran contends that his diabetes mellitus is due to presumptive herbicide exposure in Vietnam or while stationed in Thailand. As such, the remaining claims on appeal are secondary to his diabetes mellitus. The Veteran’s awards and decorations do not indicate that the Veteran engaged in combat with the enemy. There is no other evidence sufficient to find that he engaged in combat with the enemy. Thus, the combat provisions of 38 U.S.C. § 1154(b) are not applicable in this case. Hence, the Veteran’s own report is not sufficient in this case to establish that he was exposed to an herbicide agent. See 38 C.F.R. § 3.304(f)(2). The Veteran’s service treatment records are negative for diabetes, diabetic retinopathy, cataracts, or peripheral neuropathy of the extremities. See, e.g., April 1967 separation report of medical examination. Post-service treatment records show that he was diagnosed with diabetes in 1990. See April 2017 private treatment record (stating diabetes mellitus began 1990). At the October 2019 Board hearing, the Veteran testified that in January or February 1967, he was transferred from Okinawa to Thailand, and that the plane stopped in Saigon, Vietnam to refuel and unload equipment, and then proceeded to U-Tapao Royal Thai Air Force Base (RTAFB). The Veteran has expressly denied being aboard a ship in Vietnam or within 12 nautical miles from the shore of Vietnam. Hence, the recent guidance provided in Procopio v. Wilkie 913 F.3d 1371 (Fed. Cir. 2019), is not applicable in this case. To the extent the Veteran reports a plane he was aboard landed in Vietnam while he was being transferred from Okinawa to Thailand, the Board finds that the most probative evidence is against such a finding. The Veteran’s military personnel records are negative for service in Vietnam. There is otherwise no competent credible evidence the Veteran had any service in Vietnam. See, e.g., July 2013 United States Army and Joint Service Records Research Center (JSRRC) Memorandum; February 2017 Defense Personnel Records Information System (DPRIS) response; September 2020 JSRRC Memorandum. To the extent the Veteran reports he had herbicide exposure while stationed at U-Tapao RTAFB, the Board finds that the most probative evidence is against such a finding. Initially, the Board notes that the Veteran’s service personnel records show no transfer orders corroborating the Veteran’s testimony of being transferred from Okinawa to Thailand. Nonetheless, even assuming for the limited purpose of this appeal that the Veteran’s service included being stationed at U-Tapao RTAFB, the Board finds the preponderance of the evidence is against finding the Veteran was presumptively exposed to herbicides while being stationed there. The Veteran’s DD Form 214 shows that his military occupational specialty (MOS) was aircraft maintenance man. The Veteran’s MOS is not listed among those recognized to have served near the air base perimeter, such as a security policeman, security patrol dog handler, a member of a security police squadron, or otherwise operated near or in an area where herbicides were known to have been applied. While the Veteran stated in June 2014 correspondence that he was assigned to perimeter security while stationed in Thailand, at the October 2019 hearing, the Veteran specifically stated he performed security watches only around the perimeter of the aircrafts, which would be consistent with his MOS. Accordingly, to the extent the Veteran contends he served near the air base perimeter, the Board finds such statements to be not credible. Hence, he is not entitled to presumptive herbicide exposure while stationed in Thailand, assuming for the limited purpose of this appeal that he was stationed in Thailand. The Board also acknowledges the Veteran’s submission of online material regarding Operation Market Time in December 2017, stating that during the relevant period some patrol squadrons involved flew from South Vietnam, Thailand or Philippine bases, including Patrol Squadron Forty-Six (VP-46), of which the Veteran was a member. As noted above, the preponderance of the evidence is against a finding the Veteran had service in Vietnam. To the extent the online material is being used to reflect service in Thailand, for the limited purpose of this appeal, the Board has already conceded the Veteran was stationed in Thailand. However, inasmuch as the Board has found the preponderance of the evidence is against a finding the Veteran served near the air base perimeter, he is not entitled to presumptive herbicide exposure while stationed in Thailand. Accordingly, the Board finds that conceding exposure to herbicides is not warranted. See 38 C.F.R. § 3.309(a)(6). Even though presumptive service connection is not warranted, the Veteran is not precluded form establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). While the Veteran believes that his diabetes mellitus is related to his active military service, and specifically to his claimed exposure to herbicides, he is not competent to provide the medical etiology in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). There is no competent scientific or medical evidence of record to support the Veteran’s contention that his diabetes and secondary disabilities resulted from herbicide exposure during active service or are otherwise related to his active military service. The Veteran does not contend, and the record does not show, that his diabetes mellitus manifested during service or within a year of separation. Medical records do not show an initial diagnosis for his diabetes or any claimed disability for many years following service. Thus, service connection for diabetes mellitus or his claimed secondary disabilities (diabetic retinopathy, cataracts, bilateral upper and lower extremity peripheral neuropathy) are not available on a direct basis. The Board acknowledges that a VA examination has not been afforded to the Veteran in this case regarding his diabetes and secondary disabilities. However, the Board finds that such an examination is not warranted in this case as the threshold under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), for obtaining an examination has not been met in this case, as evidence does not establish a relevant in-service injury or event. Regarding the Veteran’s claim seeking service connection for diabetic retinopathy, cataracts and peripheral neuropathy of the bilateral upper and lower extremities as secondary to the Veteran’s diabetes mellitus, inasmuch as the Board finds that the preponderance of the evidence is against service connection for diabetes mellitus, the Veteran’s secondary theory of entitlement has no merit. 38 C.F.R. § 3.310(a). The Board acknowledges the receipt of a map submitted by the Veteran’s representative purporting to show various flight paths during the relevant period. The Board finds the map is of limited, if any, probative value as the map is illegible. See October 2019 map; August 2020 map. (Continued on the next page)   As 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); Gilbert v. Derwinski, 1 Vet. App. 49, 5456 (1990). For these reasons, the claims are denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.