Citation Nr: 21007254 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-38 420 DATE: February 9, 2021 ORDER Entitlement to service connection coronary artery disease (CAD) is denied. Entitlement to service connection for type II diabetes mellitus is denied. Entitlement to service connection for erectile dysfunction associated with type II diabetes mellitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that CAD began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that diabetes began during active service, or is otherwise related to an in-service injury or disease 3. The evidence of record shows erectile dysfunction is not proximately due to, the result of or made worse beyond its natural progression by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection CAD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for diabetes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 3. The criteria for entitlement to service connection for erectile dysfunction 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 Air Force from July 1968 to April 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In March 2019, the Board denied entitlement to service connection for CAD, diabetes, and erectile dysfunction, because the evidence did not did not support a conclusion that the Veteran’s disabilities were caused by an event, injury, or illness during active service, including herbicide exposure. The Veteran timely appealed. In July 2020, a Joint Motion for Partial Remand (JMPR) was issued by the United States Courts of Appeals for Veterans Claims (CAVC) vacating the March 2019 Board decision in part, because the Board misapplied the VA Manual to the Veteran’s claims. More specifically, with respect to whether the Veteran was exposed to herbicides such as agent orange while stationed in Thailand, the Board stated that the Veteran’s statement lacked detail regarding the "frequency or duration" of his time in the exposed area and the Veteran’s statements did not establish whether his duties took him to the perimeter. The JMPR stated that the Board did not explain why the Veteran had to satisfy a temporal, frequency or prolonged duration of time at the perimeter. The Board also imposed a performance of duty standard in determining whether the Veteran was "otherwise near the air base perimeter.” On remand, the Board must reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during his or her service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.§ 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The following diseases will be deemed service connected if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin’s disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin’s lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson’s disease, and ischemic heart disease. 38 C.F.R. § 3.309 (e). VA procedures for verifying exposure to herbicide agents in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H. VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Special consideration of herbicide-agent exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. See M21-1, Part IV.ii.1.H.5.a. A section of this manual address herbicide-agent exposure in Thailand during the Vietnam Era (“herbicide” as used in the manual is understood to mean “herbicide agent” as used in the regulation). The manual directs rating specialists to concede herbicide agent exposure to those who served in the United States Air Force at a number of Royal Thai Air Force Bases. 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. If a 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 military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10 (q). These provisions are guidance to VA adjudicators, but are not binding on the Board. 1. Entitlement to service connection for CAD. 2. Entitlement to service connection for diabetes. In an August 2017 Affidavit, the Veteran swore that he was stationed in Thailand at the Nakon Phanom (NKP) Air Force Base (AFB). He wrote that while stated at NKP, his served as a communications specialist which was his military occupational specialty (MOS). He was responsible for input and output of messages between Air Force personnel. The communications center was next the flight line and he could see the fences that lined the outskirts of the base adjacent to the communications center. It was common for him to complete additional details outside of the communications center such as clean up. In addition, the “hooches”, or housing units, were close to the communication center. To travel between the “hooches” and center, he would have to pass by the flight line of the base. When not working, he walked throughout the entire base with other members or took the shuttle into town which had to pass through the front gate to transport from the town to the base. It was also common for him to walk to the perimeter for breaks but walking was not driven or purposed by his duties as a service member. Due to this activity, the Veteran contends that he was exposed to a herbicide agent which caused his CAD and diabetes. Pursuant to the VA manual, there are three ways to meet the presumption requirement of exposure to herbicide. The evidence must show that the Veteran served at the listed bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter. In this case, the Veteran did not serve as a security policeman, security patrol dog handler, or member of a security police squadron. Therefore, his claims rest on the provision of “otherwise served near the air base perimeter.” The provision is satisfied: (1) if the Veteran’s MOS duties required him to be in or near the perimeter; (2) his performance evaluation report reflect that he was near the perimeter; or (3) if other credible evidence shows that he was near the perimeter. In this case, the evidence of record shows the Veteran’s MOS did not require him to be at the perimeters of the base. His duties required him to only work in the communications center. Of record is the Veteran’s Performance Report for the period of April 1970 to July 1970, while stationed at Nakhon Phanom Royal Thai Air Force Base. It states in relevant part the following: Current Duty: Communications Center Specialist. Responsible for the accurate handling of incoming messages and delivery to addressees. Inspects outgoing messages for proper classification, precedence, readability and routing. Prepares messages for tape and data card transmissions into the AUTODIN system. Processes service requests from other stations concerning traffic and circuit problems. Operates off-line and on-line cryptographic equipment. The Veteran’s Performance Report for the period of August 1970 to December 1970, while stationed at Nakhon Phanom Royal Thai Air Force Base, states in relevant part: Current Duty: Communications Center Specialist. Transmits outgoing messages. Receives incoming messages. Records pertinent information on various station logs. Applies security procedures in the handling of message traffic. Logs and processes incoming/outgoing messages. Prepares outgoing service messages for transmission. Actions incoming service messages. Provides retransmissions. Perforates outgoing messages in tape form. [The Veteran] became highly proficient in the operation of the IBM 360/20 computer and all associated equipment in minimum time. [The Veteran] is exceptionally well skilled in the preparation of narrative and data card messages. He is extremely versatile and can be utilized in all areas of operation within the base communications center (emphasis added). Nothing in the above description performance reports suggested tasks which would bring the Veteran to the base perimeters. As stated above, his “areas of operation” were exclusively in the communications center. Therefore, the Veteran’s claims can satisfy the provision of “otherwise served near the air base perimeter” only by proof of credible evidence. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. In October 2016, the Veteran submitted a photo of himself and his fellow service members. He attests this was a picture of them near the NKP base perimeter. However, there is no sign or readable landmark in the photo to corroborate the Veteran’s statement. In February 2018, a photograph of the front a tent with no trees visible is followed by a note which states, “My tent.” A photograph of a tree line is followed by a note stating the perimeter is “around 100 yds from my tent.” This is not credible evidence of perimeter exposure; these are a series of photographs with assertions of what they representative, each of which is not borne out by the content of the photograph. In the February 2018 Appellate Brief, written on his behalf, the Veteran asserts the presumption of service connection, based on exposure to an herbicide agent, is applicable, as he was stationed at NKP AFB during active service. He does not assert and the evidence does not show that the Veteran was a handler of an herbicide agent, he did not spray or apply it, he did not repair aircraft or vehicles which transported it, and he did not maintain facilities which stored it. Rather, the Veteran contends that the duties of his military occupational specialty as a “communications specialist”, not directly but ultimately, led to exposure and, therefore, it be conceded under the relevant VA regulations and sections of the VA Adjudication Manual. The brief quotes extensively from the Veteran’s August 2017 affidavit, which states the Veteran was a communications specialist, he worked in the communications center and the communications center “was right next to the flight line.” Moreover, in traveling to the communications center, he had “to pass directly by the flight line.” The Board understands the flight line to mean the areas in which the aircrafts were parked and serviced. It is not entirely clear to the Board why proximity to the flight line is relevant to being near the perimeter. There would be no sound reason to establish the flight line facilities near the perimeter, where presumably aircraft would be more vulnerable to the presence of intruders. The Veteran also states in his affidavit he “could see the fences that line the outskirts of the base if I looked adjacently to the communications center.” From this, the Board understands the Veteran to be saying that he saw fencing from his place of work and that fencing indicates the perimeter. Yet, from this, nothing the Veteran states indicates more than that fencing appeared in his line of vision and that does not establish “proximity” by any accepted understanding of the word. Neither of the vague statements shows that the Veteran was near the base perimeter. In addition, passing through the gate in a motorized vehicle comparatively infrequently does not established being in proximity to or at the perimeter in any common-sense understanding of those terms. The Board must emphasize that, as stated earlier, it is mandated to exercise special consideration of herbicide-agent exposure on a facts-found or direct basis regarding determinations of whether duties placed a veteran near the perimeters of certain Thai air force bases. The evidence does not show a direct basis to establish this and the Board is presently concerned with the possibility of a “facts-found” basis. There is nothing which establishes facts or a pattern of facts to indicate that the Veteran’s duties brought him near the perimeter. The Veteran’s statements are competent but are in fact not persuasive. By the Veteran’s admission, he does not have personal knowledge as to whether herbicide agents were applied in “[a]ny area where I worked, lived, or traveled through;” he did not offer personal knowledge of where on the base he was assigned for other clean up duties; his observations of passing through the gate on leave or walking around the base are vague and conclusive. Moreover, the Board notes that the Veteran’s statements are being presented in support of a claim for monetary benefits, and this motive may be considered when weighing the credibility of such statements. For these reasons and based on the evidence of record, the Board finds the duties of the Veteran’s military occupational specialty did not take him in proximity to the perimeter of NKP and no credible evidence has been offered to establish his proximity to the perimeter, within the meaning of that term. The Veteran has submitted no other supportive evidence such as lay statements from fellow service members. Therefore, for the claims of service connection for CAD and diabetes, as due to exposure to an herbicide agent, presumptive service connection has not been established. The STRs show no in-service reports, complaints, treatment, or diagnoses of diabetes and CAD. Additionally, because diabetes and CAD were never identified in service, it would be impossible to establish continuity of symptomatology following upon service and, as just stated, the subsequent record does not reflect this. The record gives no indication of the manifestation of signs and symptoms of diabetes or CAD in complaints, treatment or diagnoses in service or within a year of separation from active duty service. Post-service treatment records show the earliest date ascribed to the manifestation of diabetes is April 17, 2002. A May 2002 VA cardiology note states the Veteran’s diabetes mellitus was “recently diagnosed” (April 2002), as well as noting a family history of diabetes, to include the Veteran’s mother, grandmother and his brother. In the period of monitoring and medications of April 2002 through May 2017, the Veteran steadily gained weight to excessive levels due to following “an indiscreet diet.” In that period, the Veteran was also monitored and prescribed medications for CAD. A May 2002 VA cardiology note states the Veteran history of heart disease has suffering an acute myocardial infarction in 1998 and undergoing an angioplasty, with two stents. Heart disease was also noted in the medical histories of two brothers. In December 2016, the Veteran’s CAD was described as being with impaired left ventricular systolic function and history of cardiac arrhythmias. Nothing in the in-service or post-service treatment record suggests a causative connection to active service, but strongly indicates relevant family histories pertaining to both disorders. Based on the objective medical evidence, the Board finds that CAD and diabetes were not caused by an event, injury or illness during active service, nor is it etiologically related to it. Consequently, service connection for both disorders based on direct causation is not established. 3. Entitlement to service connection for erectile dysfunction. Generally, the Veteran contends that he developed erectile dysfunction as a result of his diagnosed diabetes. Because the Veteran has not raised and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Secondary service connection requires: (1) a service connected disability; (2) a nonservice connected disability; and (3) evidence that the nonservice connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability. See 38 C.F.R. § 3.310. (Continued on the next page)   Post-service treatment records indicate the Veteran has a current disability. See e.g., January 2003 Neurology Note. However, the Veteran is not service connected for diabetes. Therefore, secondary service connection for erectile dysfunction due to diabetes is not warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.