Citation Nr: 21007431 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-00 237 DATE: February 9, 2021 ORDER Entitlement to service connection for diabetes is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s diabetes mellitus, type II was caused by or incurred in service, to include as due to exposure to herbicide agents. 2. The preponderance of the evidence is against a finding that the Veteran’s hypertension was caused by or incurred in service, to include as due to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes have not been met. 38 U.S.C. §§ 101, 1116, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309, 3.310 (2019). 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 101, 1116, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1983 to February 1987, with additional service in the United States Army Reserves and National Guard. This case comes on appeal of a June 2011 rating decision. Most recently, in February 2018, the Board remanded the claims for further development. Specifically, the Board noted that the agency of original jurisdiction (AOJ) had received information on contacting the Canadian Access to Information and Privacy Unit directly for additional requested information but had not done so. The AOJ also had not complied with a prior remand order to obtain the Veteran’s dates of active duty (ACDUTRA) and inactive duty for training (INACDUTRA). Since that remand, the AOJ obtained the Veteran’s ACDUTRA and INACDUTRA information. The AOJ also requested information from the Canadian Access to Information and Privacy Unit, however, was unable to obtain any records due to processing fees. The AOJ informed the Veteran that he would need to obtain these records on his own. The Board also notes that the Veteran has testified twice before the Board on the matters addressed in this decision, before two separate Veterans Law Judges (VLJs) who have since retired. After the retirement of the first VLJ, the Veteran was notified of this fact and was given the opportunity to testify at a new hearing, which he did. The Veteran has since been notified of the retirement of the second VLJ in a September 2, 2020 letter, and was once again offered an opportunity for a new hearing. The Veteran did not respond to this notice within 30 days and is therefore presumed to have declined such opportunity. The Board notes in passing that a letter informing the Veteran of an upcoming hearing, and the option to participate in that hearing virtually, was erroneously sent by the Board on October 5, 2020. Indeed, the Veteran’s prior hearing requests had already been addressed by the Board, and as discussed above, is no longer pending. Accordingly, the Board will proceed with adjudication based on the evidence of record. Service Connection 1. Entitlement to service connection for diabetes 2. Entitlement to service connection for hypertension Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires 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. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed in 38 C.F.R. § 3.309(a), including diabetes mellitus, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Here, the record demonstrates that the Veteran has been diagnosed with both diabetes mellitus, type II, as well as hypertension. The Veteran has testified that his first diagnosis came in a 2005 Department of Transportation physical examination and his sole contention is that these disabilities were caused by exposure to herbicide agents during his military service. Notably, diabetes is a disease that is considered to be presumptively connected to exposure to herbicide agents. 38 C.F.R. §§ 3.307(a)(6); 3.309(e). However, the presumption that a veteran was exposed herbicide agents is limited to those types of service designated by statute and regulation. This includes veterans who served: in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; in or near the Korean DMZ in an area in which herbicides are known to have been applied during the period from September 1, 1967 to August 31, 1971; and 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. 38 U.S.C. §§ 1116, 1116B; 38 C.F.R. § 3.307(a)(6). Here, the record does not show that the Veteran served in any of these circumstances, nor has the Veteran asserted such service. Therefore, the Veteran is not presumed to have been exposed to herbicide agents. Thus, in order to establish that the Veteran was exposed to herbicide agents, the evidence of record must specifically demonstrate such exposure. The Veteran contends that he was exposed to herbicide agents during service in three locations. During active duty service, he contends exposure at Fort Drum, New York and Eglin Air Force Base, Florida. The Veteran also contends that he was exposed to herbicide agents while called up for Reserve duty training at Gagetown Base in New Brunswick, Canada in the summer of 1987. Service personnel records document the Veteran’s service at Fort Drum while on active duty. The record does not explicitly show service at Eglin Air Force Base, nor does it show service at Gagetown Base. With regard to Gagetown Base, the Board acknowledges that the Veteran submitted a record of his being called for training beginning August 8, 1987, however, there is no indication that this training was at Gagetown Base. Nevertheless, the Board recognizes that the Veteran has established that he served for training purposes during that time and is competent to describe the location of his training. Regarding his exposure, the Veteran has testified that he believes he was exposed to herbicide agents during infantry training exercises at these bases. At his hearings, the Veteran noted that during such training exercises, he spent the majority of his time in the field. This included sleeping on the ground or in tents, and being covered in vegetation, dust, and dirt. He testified that, at Gagetown Base, he did not actually see anyone spraying herbicides, but observed areas of browned out vegetation. He did not report any actual knowledge of spraying or other usage of herbicide agents during his time at any of his service locations. In further support of his claim, the Veteran submitted internet and newspaper articles regarding the use of herbicide agents at Gagetown Base. In the development of the claim, VA received military records relating to Agent Orange testing at Fort Drum in the 1960s. These records included environmental assessments of the soil and well water at Fort Drum that took place in the 1980s. Those studies found that the integrated ion currents for native 2,3,7,8-TCDD did not exceed the criterion of 2.5 times the background noise in any of the Fort Drum samples tested. A second evaluation report concluded that dioxin was not detected in any of the samples at Fort Drum. VA also received information from the Defense Personnel Records Information Retrieval System (DPRIS) regarding the use of herbicide agents at Eglin Air Force Base. According to the DPRIS responder, United States Army records document that testing was conducted at Eglin Air Force Base using Agents Orange, Purple, White, and Blue, over a two-square-mile testing area during the period from 1962 to 1970. The records do not document any spraying, testing, transporting, storage, or usage of herbicide agents after 1970. Included among the materials the Veteran submitted regarding Gagetown Base were information papers from the Maine Veterans’ Service Department. The state of Maine had taken particular interest in the claims surrounding Gagetown Base as Maine National Guard units had regularly trained at the base. The information papers reported confirmation from the Canadian government that testing of Agents Orange and Purple took place over three days in 1966 and four days in 1967. Additional articles alleged that the Canadian military continued to spray large quantities of herbicides and defoliants at Gagetown Base through the 1980s. Notably, however, these articles did not differentiate between tactical herbicide agents and herbicides available for commercial use, nor did they establish that such usage occurred during the time the Veteran claimed to be at Gagetown Base. Based solely on the record, the Board finds that the evidence is against a finding that an in-service injury as claimed by the Veteran at least as likely as not occurred. As was noted above, unlike areas in which a Veteran is statutorily presumed to have been exposed to herbicide agents, in cases such as this one, the evidence must specifically demonstrate that the Veteran was exposed. In other words, if, for example, the Veteran had served in Vietnam from January 9, 1962 to May 7, 1975, he would be presumed to be exposed to herbicide agents simply by his mere presence in the country. However, in situations where the exposure is not statutorily presumed—such as the present case—it is not enough simply to demonstrate that the Veteran was present at a place where herbicide agents were used. Rather, the evidence must demonstrate that it is at least as likely as not that the Veteran was exposed during his service. Therefore, even if the Board were to concede that herbicide agents were in use during the Veteran’s service at each respective base, that by itself would not be enough to concede the Veteran’s individual exposure. Here, the preponderance of the evidence is against findings both that herbicide agents were in use during the Veteran’s service, and that the Veteran himself was exposed. The information obtained from the United States and Canadian governments indicates that herbicide agents were tested at Fort Drum, Eglin, and Gagetown Base only for a short time during the 1960s, decades before the Veteran’s service there. To the extent that the internet articles noted above allege continued spraying of herbicides and defoliants at Gagetown Base through the 1980s, there is no differentiation between tactical and commercial herbicides to conclude that such spraying included herbicide agents as defined by VA during the Veteran’s service, such that any such exposure would trigger presumptive service connection for Agent Orange-related diseases, such as diabetes. In any event, as noted above, even if the Board were to assume that herbicides (either tactical or commercial) were used at these bases during a time period when the Veteran was present, the evidence does not establish that it was at least as likely as not that he actually was exposed to herbicides in performance of his duties. The Veteran himself has testified that he never witnessed the spraying of herbicide agents during his service at Fort Drum, Eglin Air Force Base, or Gagetown Base. Instead, the Veteran’s contention is that he must have been exposed to herbicide agents when spending significant amounts of time directly on the ground, in vegetation, and covered in dirt and dust at those bases. In other words, the Veteran contends that his exposure came from close interactions with residual chemicals contained in the landscape of the bases. As a lay person, the Veteran, although competent to describe his duties and that he at times saw browned out vegetation, he is not competent to identify a chemical compound or to offer an opinion as to how far a chemical compound could travel or how long a chemical would last after exposure to the elements. Indeed, such a conclusion would require scientific expertise which the Veteran has not demonstrated. The Board recognizes that the Veteran would be competent to testify to his personal observations of the spraying or other use of herbicide agents, however the Veteran has testified that this was not the case. His conclusion that he must have been exposed to herbicides because he touched vegetation, and was covered in dirt and dust in performance with his duties at these bases is speculative in nature, and does not establish actual exposure. Because actual exposure is not shown by the record, there is no in-service event, injury or disease that is related to the Veteran’s claimed disabilities. Moreover, the Board acknowledges the Veteran’s contentions that he developed diabetes and hypertension at a young age and did not have any family history of those disabilities, thereby making herbicide agent exposure the only likely cause. However, the Veteran is not a medical expert and not competent to make such medical conclusions. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In September 2014, the Veteran underwent VA examinations for diabetes and hypertension. There, the examiner noted that, despite the Veteran’s claims that he was not diagnosed with diabetes and hypertension until a 2005 Department of Transportation physical examination, the military treatment records showed otherwise. During a routine examination as part of National Guard training in December 2001, the Veteran’s vital signs showed height of 68 ½ inches, weight of 240 pounds, and diastolic blood pressure of 92. Indeed, a February 2002 National Guard examination described the Veteran as having diastolic hypertension and hypercholesterolemia. March 1997 National Guard examination reports stated that the Veteran had entered a weight loss program, noting that he had a body mass index of 31, also had hyperlipidemia, and had significant health risks based on these parameters. Based on this history, the examiner concluded that, “given the high frequency of hypertension in the American population, with the prevalence of increasing with age, [the Veteran’s] hypertension is attributed to genetic susceptibility, age, and obesity.” Furthermore, the examiner concluded that it was evident from the 2001 physical examination that the hypertension preceded diabetes. Thus, risk factors for diabetes present in the Veteran included hypertension on medication and morbid obesity, with the latter playing the largest role. The examiner cited to a Medscape diabetes risk calculator which demonstrated that, absent those risk factors, the Veteran’s risk for acquiring diabetes mellitus, type II would be minimal. Thus, in addition to the fact that the evidence is against a finding of an in-service injury, the conclusion that the Veteran’s disabilities were not caused by service, to include exposure to chemicals, is further bolstered by a competent medical examination that provided alternative etiologies for diabetes and hypertension. The Board also notes that while hypertension was diagnosed during examination for National Guard training, there is no evidence that such disability had its onset during active duty or ACDUTRA service. To the extent that hypertension may have first been identified during INACDUTRA service, there is no evidence to suggest that the disability was the result of an injury incurred in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6. Finally, the Board acknowledges the Veteran’s July 2011 statement arguing that veterans who served at Gagetown Base should also be considered for presumptive service connection based on exposure to herbicides. Such presumption may only be established by statutory authority. The Board is limited to interpreting the law as it presently exists and has no liberty or jurisdiction to determine new avenues of presumptive service connection of its own accord. (Continued on Next Page) Accordingly, based on all of the foregoing, the preponderance of the evidence is against a finding that the Veteran’s diabetes and hypertension were caused by or incurred in service. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.