Citation Nr: 21005967 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-08 650 DATE: February 3, 2021 ORDER Entitlement to service connection for coronary artery disease is denied. Entitlement to service connection for multiple myeloma is denied. Entitlement to service connection for diabetes mellitus type II is denied. FINDINGS OF FACT 1. The Veteran did not have duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019. 2. The Veteran’s coronary artery disease is not shown to be caused or etiologically related to his active military service. 3. The Veteran’s multiple myeloma is not shown to be caused or etiologically related to his active military service. 4. The Veteran’s diabetes mellitus type II is not shown to be caused or etiologically related to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for coronary artery disease are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for service connection for multiple myeloma are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 3. The criteria for service connection for diabetes mellitus type II are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1962 to August 1964. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, a Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. Service Connection 1. Entitlement to service connection for coronary artery disease 2. Entitlement to service connection for multiple myeloma 3. Entitlement to service connection for diabetes mellitus type II The Veteran asserts that he suffers from coronary artery disease (CAD), multiple myeloma, and diabetes, as a result of herbicide exposure, specifically Agent Orange exposure, while in service. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. On January 29, 2019, the Federal Circuit issued an en banc decision in Procopio v. Wilkie, reversing its prior determination that VA’s interpretation of the statute and regulation was reasonable. Instead, the Court held that the statutory phrase “the Republic of Vietnam” included the 12 nautical mile territorial sea of that nation. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). By extension, the presumption of herbicide agent exposure extends to those veterans with service in the territorial seas of the Republic of Vietnam. If a veteran was exposed to certain herbicide agents during active service in Vietnam, CAD, multiple myeloma, and diabetes will be presumed to have been incurred in service if manifest to a compensable degree even if there is no record of such disease during service. See 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). The Veteran served aboard the U.S.S. Kitty Hawk. He reported being off of the coast of Vietnam from May 1964 to June 1964. He reported being able to see land, and during that time, they were launching strike aircraft into Vietnam. He reported having a heart attack in 1991 and thereafter being diagnosed with CAD. He reported being diagnosed with multiple myeloma in 2013. He indicated that while aboard the U.S.S. Kitty Hawk, they were engaged in special operations. He was an electronic technician, and his job was to check stall operations of the electronic equipment on the aircraft. These aircraft had just returned from missions in Vietnam. He stated that he would climb on the aircraft, and many times he would get an unknown substance on his hands and knees, and it had an acrid smell. He believes the unknown substances were Agent Orange residue. The Veteran’s personnel records indicate that as of April 1963 he commenced a continuous sea tour. Records indicate that from May 1964 to August 1964 the Veteran’s duty included FITRON 114, which is a fighter squadron of the United States Navy. The Veteran’s DD 214 details that he served in Fighter Squadron 114, and had foreign and/or sea service totaling one year and four months. There is an entry in his service treatment records from April 1964 that indicates he was aboard the U.S.S. Kitty Hawk. In treatment records from 1991, the Veteran was noted as having CAD and undergoing a two-vessel CABG. Records from 2007 from Cardiology Consultants indicate the Veteran was diagnosed with coronary artery disease and diabetes. In a January 2015 record from Sacred Heart Cancer Center, the Veteran was noted as having multiple myeloma. In July 2015 the RO issued an administrative decision determining that there is a lack of information to substantiate a claim for service connection for herbicide exposure. The Veteran asserted exposure during service while serving on board the USS Kitty Hawk. The USS Kitty Hawk was not on the Vietnam ship list, and the Veteran’s military personnel records do not show service in Vietnam. In a November 2020 VA Memorandum, it was determined exposure to herbicides cannot be conceded as the evidence of record does not show the Veteran duty or visitation in Vietnam, or its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. The Fighter Squadron 114, VF-114, served onboard the Kitty Hawk from October 1963 to July 1964. Logbooks were retrieved, and a professional researcher from the Veterans Benefits Administration, Compensation Service, completed comprehensive research on the Veteran’s claimed exposure event, claiming herbicide exposure while serving aboard the USS Kitty Hawk. For the period October 1963 to July 1964, the USS Kitty Hawk did not anchor or dock in a qualifying bay/harbor or travel along inland waterway in the Republic of Vietnam. There is no probative evidence that the Veteran served within the 12 nautical mile territorial sea of Vietnam. STRs are silent for documentation of CAD, multiple myeloma, or diabetes. The first indication post-discharge of CAD was over twenty years post discharge in 1991, and of multiple myeloma and diabetes the first indication was over forty years post discharge. Therefore, presumptive service connection based on a chronic disease is not warranted. The preponderance of the evidence is against finding that the Veteran suffers from CAD, multiple myeloma, or diabetes directly due to his military service. There is no in-service event identified by the Veteran other than his contention that he was exposed to herbicide agents in service. Absent an in-service event upon which his diagnoses could be based, the direct service connection claim fails. The Board has considered the Veteran’s contentions that his CAD, multiple myeloma, and diabetes were caused by herbicide exposure. The Veteran is competent to give evidence about what he experienced. In most cases, the Veteran is not competent to render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. Further, herbicide exposure has not been established. The Veteran, as a lay person, has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his CAD, multiple myeloma, and diabetes and service. As herbicide exposure is not conceded, service connection on a presumptive basis cannot be granted. The Board appreciates the Veteran’s contentions that his claimed disabilities were incurred in service, these statements are outweighed by the probative evidence showing no CAD, multiple myeloma, and diabetes during service, or for several years post-discharge. In other words, there is no competent or credible evidence of record showing that the Veteran’s CAD, multiple myeloma, or diabetes were caused or aggravated by an event, injury, or disease in service. Under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant’s favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence is against the Veteran’s claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.