Citation Nr: 21010922 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-56 522 DATE: February 26, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to toxic herbicide exposure is denied. Entitlement to service connection for hypertension, to include as secondary to type II diabetes mellitus, is denied. Entitlement to service connection for a heart disorder, characterized as coronary artery disease with stenosis, to include as secondary to type II diabetes mellitus, is denied. Entitlement to service connection for myocardial infarction, to include as secondary to type II diabetes mellitus, is denied. Entitlement to service connection for left leg peripheral vascular disease, to include as secondary to type II diabetes mellitus, is denied. FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam, and there is insufficient evidence to conclude that the Veteran was exposed to herbicides during active service, to include service at Korat Royal Thai Air Force Base. 2. The Veteran’s type II diabetes mellitus (diabetes) was not incurred in service, nor is it related to service, to include herbicide agent exposure. 3. The Veteran’s hypertension was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service, to include as secondary to his type II diabetes mellitus. 4. The Veteran’s diagnosed heart disorder, characterized as coronary artery disease (CAD) with stenosis was not shown in service or for many years thereafter, and is not otherwise etiologically related to active duty service, to include as secondary to his type II diabetes mellitus. 5. The Veteran’s myocardial infarction was not caused by or related to active duty service, to include as secondary to his type II diabetes mellitus. 6. The Veteran’s left leg peripheral vascular disease was not caused by or related to active duty service, to include as secondary to his type II diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes, to include as due to herbicide agent exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for hypertension, to include as secondary to diabetes, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for CAD with stenosis, to include as secondary to diabetes, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for myocardial infarction, to include as secondary to diabetes, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 5. The criteria for entitlement to service connection for left leg peripheral vascular disease, to include as secondary to diabetes, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1963 until February 1983 when he retired from the U.S. Air Force. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife provided testimony during a virtual hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing is of record. Service Connection The Veteran is seeking service connection for his diagnosed diabetes, hypertension, CAD, myocardial infarction and peripheral vascular disease of the left leg. It is his contention that his diabetes is directly attributable to his exposure to toxic herbicides while serving at Korat Royal Thai Air Force Base, Thailand during his service. He also contends that his diabetes was the cause of the other claimed conditions. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 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. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Type II diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, B-cell leukemias, respiratory cancers, and ischemic heart disease. 38 C.F.R. § 3.309(e). 1. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure The Veteran asserts that his diabetes is related to active service, to include as secondary to exposure to toxic herbicides while at Korat Royal Thai Air Force Base. Specifically, the Veteran asserts that his sleeping quarters were 25 feet from the base perimeter. He testified at his January 2021 hearing that the military sprayed “I don’t know what”, likely Agent Orange and/or pesticides to “keep the vegetation down” on the perimeter fence. He stated that he would wake up in the morning and feel his bed sheets wet from spray. The Board concludes that while the Veteran has a current diagnosis of diabetes, the preponderance of the evidence weighs against finding that this disorder began during service or is otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.304, 3.307, 3.309. As an initial matter, presumptive service connection is for application for any of the applicable disabilities listed under 38 C.F.R. § 3.309(e), to include diabetes. To warrant service connection through this section, the Veteran must show exposure to certain herbicide agents during active service. That is, if herbicide exposure is found on either an actual or presumptive basis, then service connection of a listed qualifying disability is guaranteed by statute. However, there has not been a showing of actual exposure to toxic herbicides. In this regard, a May 2010 VA Compensation and Pension Bulletin indicated that there was significant use of some herbicides on the fenced-in perimeters of military bases in Thailand, which was intended to eliminate vegetation and ground cover for base security purposes. Therefore, when veterans claim herbicide-related exposure in Thailand, evaluation of whether a veteran was actually exposed to such herbicides may also be for consideration. VA's Adjudication Procedure Manual, M21-1, Part IV.ii.1.H.4.b. (December 31, 2019) was thereby adopted for application in cases where a Veteran alleged exposure to herbicides in Thailand, and contemplates the possibility that veterans who were at the specified Royal Thai Air Force Bases (RTAFBs), including at Korat, and were involved with airbase perimeter security may have been exposed to toxic herbicides. Before turning to the merits of the Veteran's specific claim, the Board emphasizes that the entire concept of applying 38 C.F.R. §§ 3.307 and 3.309 to veterans serving at the RTAFBs is very tenuous, and reaches back to a VA Compensation and Pension bulletin from 2010, which proposed the potential possibility that veterans there were exposed to dioxin-containing pesticides (not herbicides), based on the results of the Project CHECO Southeast Asia Report, even though that report was also rather equivocal in its findings. As of this decision, it has been over a decade since this bulletin was published and subsequently incorporated into the VA Adjudication Procedures Manual, M21-1. However, the Board notes that no statute has ever cemented the bulletin into law, nor does any VA regulation (to include 38 C.F.R. § 3.307 or 3.309) require the Board to consider service connection on this basis. Indeed, it is unclear whether the Board is bound to consider this bulletin (or the M21-1 passage) at all. See DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017). Nevertheless, this question need not be answered here, as the Board finds that the special consideration envisioned by the C&P bulletin extends only to those veterans whose duties specifically placed them on or near the perimeters of the RTAFBs. See Compensation and Pension Service Bulletin, May 2010, Sec. 2 (Policy 211). This bulletin, and the subsequent development manual provisions in the M21-1, make it clear that this presumption is afforded based on actual, consistent service at the border of the RTAFBs, not on mere incidental contact, to include passing through the border to come and go from the base, or to visit buildings near the border. Indeed, this is inferred in the wording in the M21-1, which limits such a presumption to specific military occupations, or to those who otherwise served near the air base perimeter. That any party would come into contact with the border to enter and exit the base or might enter buildings which are not directly in the middle of the base, would be generally accepted for most veterans who served on a RTAFB. Such an interpretation is reasonable. If VA policy intended to provide a presumption to every single veteran who crossed the border of the base to enter and exit, or had other incidental contact with buildings near the border, it would have to provide such a presumption to nearly any veteran who set foot on one of the acknowledged RTAFBs, and potentially anywhere in Thailand, for that matter. Instead, VA policy extends to those veterans whose actual military occupational duties placed them on or near the actual perimeter of the bases in question. While the Veteran served in Thailand within the period from 1961 to 1975, and while diabetes is a disorder that may be presumed related to toxic herbicide agent exposure under §3.309, the evidence does not show regular service at or near the perimeter of a Royal Thai Air Force Base during the relevant period. Notably, the Veteran served in the MOS of Motor Vehicle Operator but did not serve in an MOS that would regularly take him near the perimeter of a RTAFB, to include an MOS of "dog handler" or "security patrol." Moreover, the Veteran testified at his hearing, denying service in such capacities, even on a temporary basis. Unfortunately, even with the testimonial and physical evidence of record, VA cannot corroborate that the Veteran served near the perimeter of Korat RTAFB, nor does the evidence show regular, sustained exposure to Agent Orange in service. Specifically, while the information provided does suggest that the Veteran was present at the perimeter at sporadically during service, it does not report how often or if the Veteran was exposed to Agent Orange, the possible amount exposed, or the way he may have been exposed. Of note, he specifically denied having ever worked around pesticides, acids, benzene or other toxic materials during several medical examinations in his career: December 1978, December 1979 and April 1981. The Veteran has submitted several detailed schematics of Korat RTAFB, detailing the site of his sleeping quarters and the perimeter line. One such document states that service-members’ sleeping quarters were “as close as 35 feet” to the perimeter line, whereas the Veteran testified he slept 25 feet from the perimeter. In July 2013 he submitted a map of Korat RTAFB, placing an “x” about 300 meters (according to the map legend) inside the perimeter with a marking of “my living quarters”. The Veteran has not presented evidence, whether in the form of articles or photographs, that his station brought him near the perimeter of a covered RTAFB, on a regular basis. Indeed, while the Veteran competently states that his duties took him across the perimeter of Korat Royal Thai Air Force Base as he drove F-105 pilots, and while he states that his sleeping quarters were close to the perimeter, he does not state, and the evidence does not reflect, that his duties involved a regular, sustained presence at the Korat RTAFB perimeter. Accordingly, the presumption of service connection for diabetes is not available. Next, while herbicide exposure is not recognized, this does not prevent service connection based directly on active duty service. Combee v. Brown, 34 F.3d 1039, 1041-42. Unfortunately, service connection is also not warranted on this basis. As an initial matter, the Veteran’s service treatment records (STRs) do not reflect that the Veteran exhibited diabetic symptomatology in service. Of note, he expressly denies personal history of diabetes during examinations in December 1975, March 1980 and during his retirement examination in September 1982. In fact, the Veteran’s post-service medical evidence demonstrates that he was not diagnosed with diabetes until 12 years after service. In a January 1995 diabetes assessment in the record, he writes that he was diagnosed with diabetes in June 1994. Several VA examinations for his other disorders, which he argues are secondary to his diabetes, all list his diabetes diagnosis as 1994 in their positive rationales. During the Veteran’s hearing, he testified that he has had diabetes for “about 45 years” – placing onset or a diagnosis somewhere around 1976 while he was still in-service. While he first asserted continuity of symptoms since service at his hearing, he affirmatively denied a personal history of diabetic symptoms during several in-service medical exams, most importantly his September 1982 retirement exam. The Board finds that continuity of symptoms has not been shown based on the clinical evidence, or the Veteran’s statements. Further, there is insufficient evidence in the medical records to indicate a nexus between his active service and his diabetes. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges that the Veteran was provided with a VA examination in July 2012 to determine the extent of his diabetes and its relation to his claimed secondary conditions. This examination did not provide an opinion as to the etiology of his diabetes or whether the condition was related to service. Given the absence of in-service evidence of manifestations of diabetes and the lack of any evidence of diabetes until his diagnosis in June 1994, the Board finds that a VA examination to determine whether his diabetes is related to active duty service is not warranted. 38 C.F.R. § 4.2; McLendon v. Nicholson, 20 Vet. App. 79 (2006). As part of this claim, the Board recognizes the statements from the Veteran, regarding the relationship between his diabetes and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology such as increased blood sugar, he is not competent to provide a nexus opinion in this case. The issue of exposure is also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377. Therefore, any unsubstantiated statements regarding the etiology of the Veteran's diabetes are found to lack competency. Finally, there is no other evidence of record to relate the Veteran's diabetes to service and, as noted above, the Board cannot recognize toxic herbicide exposure based on the evidence of record. Thus, service connection for diabetes must unfortunately be denied. 2. Entitlement to service connection for hypertension, to include as secondary to diabetes 3. Entitlement to service connection for CAD, to include as secondary to diabetes 4. Entitlement to service connection for myocardial infarction, to include as secondary to diabetes 5. Entitlement to service connection for left leg peripheral vascular disease, to include as secondary to diabetes The Veteran is seeking secondary service connection for hypertension, CAD, myocardial infarction and left leg peripheral vascular disease. He ascribes these disabilities to his diagnosed diabetes condition. The Board finds that service connection is not warranted for any of these conditions. The Veteran was afforded a July 2012 VA examination to determine the etiologies of the above conditions, specifically if they were related to his diabetes. The examiner concluded that it was at least as likely as not that his hypertension, CAD, myocardial infarction and peripheral vascular disease were related to his diabetes. However, as discussed above, he is not service connected for his diabetes condition. As such, he cannot be granted service connection for these claims. Next, although the Veteran is not entitled to service connection for his hypertension, CAD, myocardial infarction and peripheral vascular disease based on a secondary service connection, he is not precluded from demonstrating that these conditions were proximately due to an in-service illness, event or injury. See Combee v. Brown, 43 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, the competent evidence fails to establish a relationship between active duty and the Veteran’s hypertension, CAD, myocardial infarction and peripheral vascular disease. First the Veteran’s hypertension, CAD, myocardial infarction and peripheral vascular disease were not shown in service. Specifically, the Veteran’s enlistment examination from February 1963, multiple STRs and his retirement examination from September 1982 do not contain any evidence of diagnoses or treatment for the claimed conditions. The Board notes that the Veteran was seen for “chest pains” in May 1981, with the treating physicians stating that it may be related to gastrointestinal issues. A follow-up visit is noted a week after the incident, but the issue was apparently resolved as no treatment notes are listed next to the appointment record. Regardless, during his retirement exam a little over a year later in September 1982, the Veteran specifically reported that he was in “good” health. Furthermore, the evidence of record does not contain a diagnosis of hypertension until 1997; a diagnosis of CAD until 2006; a diagnosis of myocardial infarction until 2006; and a diagnosis of peripheral vascular disease until 2006. These conditions were all diagnosed approximately 15 to 24 years after his active duty service. Therefore, continuity of symptoms since service is not shown. Indeed, the Veteran has not asserted that he has had any of these conditions since service. Next, service connection may be granted if the evidence otherwise reflects that the Veteran’s hypertension, CAD, myocardial infarction and peripheral vascular disease are related to service. However, after a review of all available evidence, service connection is not warranted on this basis. Specifically, there is no evidence of record to indicate that the Veteran’s disorders are related to his service. The July 2012 examiner concluded that his hypertension was caused by his non-service-connected diabetes. This examiner also opined that his CAD was “secondary to lifestyle, age, and heredity” while also stating it was as likely as not related to his diabetes. With regard to his myocardial infarction, the examiner concluded that it was secondary to his CAD and diabetes. Additionally, the examiner opined that his peripheral vascular disease was related to his diabetes, however he provided no other determinations on etiology. Finally, the Board notes that the Veteran has not provided any evidence, including private opinions and/or medical evidence, to establish a nexus between the disorders on appeal and active service. In arriving at these conclusions, the Board has considered, in addition to the entire evidence of record, the statements made by the Veteran relating his hypertension, CAD, myocardial infarction and peripheral vascular disease to active duty service. However, as stated above, he has not asserted that these conditions are directly related to service – but caused by his type II diabetes mellitus. The Board concludes that the weight of the evidence is against the claim for service connection and there is no other doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied.   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. McDonald