Citation Nr: 21008417 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 19-01 548 DATE: February 17, 2021 ORDER Service connection for ischemic heart disease, to include as due to exposure to herbicides, is denied. Service connection for diabetes type II, to include as due to exposure to herbicides, is denied. Service connection for peripheral neuropathy in bilateral feet, to include as due to diabetes type II, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that ischemic heart disease is related to service, and it did not manifest to a compensable degree within one year of separation from service. 2. The preponderance of the evidence is against a finding that diabetes type II is related to service, and it did not manifest to a compensable degree within one year of separation from service. 3. The preponderance of the evidence is against a finding that peripheral neuropathy in bilateral feet is related to service, and it did not manifest to a compensable degree within one year of separation from service. 4. Whether the Veteran’s peripheral neuropathy in bilateral feet is secondary to his diabetes type II is moot as service connection has not been established for diabetes type II. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease, to include as due to exposure to herbicides, has not been met. 38 U.S.C. §§ 1101, 1112, 1113, 5107; 38 C.F.R. §§ 3. 102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for diabetes type II, to include as due to exposure to herbicides, has not been met. 38 U.S.C. §§ 1101, 1112, 1113, 5107; 38 C.F.R. §§ 3. 102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for peripheral neuropathy in bilateral feet, to include as due to exposure to herbicides and proximately due to diabetes type II, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the U.S. Air Force from August 1964 to August 1968. The issue is on appeal from a February 2015 rating decision. The Board of Veterans’ Appeals (Board) notes that the Veteran was scheduled for a hearing in December 2020. However, he failed to appear for his hearing and did not submit a request to reschedule. Thus, due to the Veteran’s no-show, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). 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; 38 C.F.R. § 3.303. 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). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as the diseases on appeal, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For those who had active service in the Republic of Vietnam between January 1962 and May 1975, service connection may be granted certain enumerated chronic disease based upon presumed exposure to an herbicide agent, such as Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Service in the Republic of Vietnam includes waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Although statutory and regulatory provisions do not establish a presumption of exposure to herbicide agents based on service in Thailand, per information from the Department of Defense, VA recognizes that herbicide agents, including Agent Orange, were used at certain times and places at some military bases in Thailand during the Vietnam Era. With regard to the claim of exposure to herbicide agents while serving in Thailand, current VA policy provides for special consideration of herbicide exposure for veterans whose duties placed them on or near the perimeters of certain designated Royal Thai Air Force Bases (RTAFBs) during the Vietnam Era. Specifically, if a veteran serviced in the United States Air Force during the Vietnam Era at a specified RTAFB, including Takhli RTAFB, and was a security policeman, security patrol dog handler, or otherwise served near the base perimeter as shown by daily work duties, performance evaluations, or other credible evidence, then herbicide exposure is conceded. See U.S. Dep’t of Veterans Aff., Compensation and Pension Service Bulletin 3 (May 2010). The determination as to whether these requirements for service connection are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The Board must consider lay evidence in addition to the service records, and the places, types, and circumstances of service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). 1. Service connection for ischemic heart disease, to include as due to exposure to herbicides 2. Service connection for diabetes type II, to include as due to exposure to herbicides The Veteran contends that he is entitled to service connection for ischemic heart disease and diabetes type II, as due to herbicide exposure. Specifically, the Veteran asserts that his military occupational specialty (MOS) as an airplane mechanic/maintenance specialist required him to fly to Vietnam in a five-man group to make temporary repairs on planes that were out of service so that the planes could fly back to Takhli RTAFB. Once the plane was airborne and en route, the Veteran would return to Takhli after several days in Vietnam. Here, the Agency of Original Jurisdiction (AOJ) found that the Veteran has a current diagnosis of ischemic heart disease and diabetes type II. Thus, the dispositive issue is whether the Veteran is entitled to a presumption of exposure to herbicide agents, including Agent Orange, and thereby entitled to an award of service connection for ischemic heart disease or diabetes on a presumptive basis. The Veteran’s military personnel records confirm that he served in Thailand from May 1966 to May 1967 as an aircraft mechanic. They do not reveal that he served as a security policeman, security patrol dog handler, nor member of the security police squadron at the Takhli RTAFB. The military personnel records also do not specifically indicate that the Veteran otherwise served near the base perimeter of nor was involved in the perimeter security duty at the Takhli RTAFB; nor has the Veteran ever indicated that his active duty required him to spend any time for work, recreation, training, nor residence near the perimeter. The military personnel records are also silent as to any work trips to Vietnam, per the Veteran’s statements. In February 2015, the VA issued a formal memo stating that Agent Orange exposure could not be verified. Unfortunately, there is no evidence corroborating the Veteran’s statements regarding any work in Vietnam nor at the Takhli RTAFB perimeter during active duty. Although the Veteran’s statements regarding his work in Vietnam and on the Takhli RTAFB are both competent and credible, the Board finds the herbicide agent presumption is inapplicable as the evidence does not demonstrate fulfillment of the necessary requirements for herbicide agent presumption under 38 C.F.R. § 3.309(a)(6). Turning to another avenue of service, direct service connection, the evidence reveals that the Veteran has a current diagnosis of ischemic heart disease and diabetes, satisfying Shedden element (1). The question before the Board is whether the Veteran’s ischemic heart disease and diabetes are due to an in-service injury, incident, or disease. Unfortunately, the Veteran’s service treatment records are void for any diagnosis or complaints of either condition. Specifically, the Veteran denied experiencing any related symptoms nor was found to have such a condition in his April 1968 separation evaluations. Post-separation, the Veteran’s VA treatment records demonstrate complaints of and treatment for ischemic heart disease and diabetes. The earliest notation of ischemic heart disease is in 1989 and diabetes is in November 2012. An etiology opinion for ischemic heart disease or diabetes is not included in the evidence. Based on the above, the Board finds that the Veteran did not experience any in-service injury, disease, or event associated with ischemic heart disease nor diabetes, and symptoms of ischemic heart disease nor diabetes were not chronic during active duty. Furthermore, the Board finds that ischemic heart disease and diabetes symptoms were not continuous after separation and did not manifest to a compensable degree within a year of separation. The first record of ischemic heart disease is in 1989 or 21 years after separation and of diabetes is in November 2012 or 44 years after separation. While the Veteran believes his ischemic heart disease and diabetes type II are due to active duty, he is not competent to provide an etiology opinion in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the preponderance of the evidence is against service connection for ischemic heart disease and diabetes type II, the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Service connection for peripheral neuropathy in bilateral feet, to include as due to diabetes type II The Veteran seeks service connection for peripheral neuropathy in bilateral feet due to his diabetes type II. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the current disability was either (a) caused, or (b) aggravated by the service-connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Secondary service connection is inapplicable as the Veteran is not service-connected for diabetes type II. Therefore, secondary service connection for peripheral neuropathy in bilateral feet due to diabetes type II is not warranted. Turning to direct service connection, the Veteran has a current diagnosis of peripheral neuropathy in bilateral feet, satisfying Shedden element (1). However, the Veteran’s service treatment records do not show an in-service injury, disease, or incident involving any symptoms indicative of peripheral neuropathy or any other neurological condition. Noticeably, the Veteran’s April 1968 separation evaluations reveal no complaints or diagnosis of peripheral neuropathy. Post-separation, the Veteran’s VA medical records demonstrate complaints and treatment for peripheral neuropathy in bilateral feet. However, the competent medical evidence does not contain an etiology opinion for the diagnosis. Furthermore, symptoms and diagnosis of peripheral neuropathy in bilateral feet first appeared decades after the Veteran’s separation from active duty, and therefore, chronicity cannot be established. The Board recognizes the Veteran’s contention that his peripheral neuropathy in bilateral feet is proximately due to diabetes type II or active duty. However, he is not competent to render such an opinion. To opine as to the etiology of the symptoms of the condition requires medical expertise which he is not shown to possess. Jandreau, 492 F.3d at 1377. Consequently, the Board gives more probative weight to the competent medical evidence. Finally, the Board notes that although the Veteran has not sought after presumptive service connection due to herbicide exposures for his claim of peripheral neuropathy in bilateral feet, the condition is included in the list of enumerated diseases under 38 C.F.R. § 3.309(e) and should therefore be addressed. As discussed above, the Board finds the herbicide agent presumption is inapplicable as the evidence does not demonstrate fulfillment of the necessary requirements for herbicide agent presumption under 38 C.F.R. § 3.309(a)(6). Therefore, this avenue of service connection must also be denied. (Continued on next page) Based on a review of the foregoing evidence and the applicable laws and regulations, the Board concludes that the preponderance of the evidence is against the Veteran’s claims of service connection for peripheral neuropathy in bilateral feet. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.