Citation Nr: 21014079 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-23 392 DATE: March 11, 2021 ORDER Service connection for arteriosclerotic heart disease (coronary artery disease) is denied. Service connection for diabetes mellitus type II (DM) is denied. FINDINGS OF FACT 1. The Board’s January 2018 decision found that the Veteran was exposed to chemical agents in so far as his MOS of a decontamination specialist exposed him to chemical agents consistent with types, places, and circumstances of his service. 2. A January 2019 Joint Motion for Remand (JMR) vacated the January Board 2018 decision. 3. Although the Veteran served during the presumptive period, the Veteran did not have in country service in the Republic of Vietnam nor in the Korean Demilitarized Zone. 4. The Veteran was not exposed to herbicide agents including Agent Orange (AO) during his military service. 5. The preponderance of the evidence is against a finding that the Veteran’s current diabetes mellitus type II was caused by or incurred during his service to include claimed herbicide and chemical agent exposure. 6. The preponderance of the evidence is against a finding that the Veteran’s current arteriosclerotic heart disease (coronary artery disease) was caused by or incurred during his service to include claimed herbicide and chemical agent exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for arteriosclerotic heart disease (coronary artery disease) are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus type II are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to February 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in February 2015. A transcript of the hearing is associated with the Veteran’s claims folder. These claims were last remanded by the Board in September 2020. Since the Board finds substantial compliance with the prior remand directives new opinion regarding the nature and etiology of his CAD and DM have been obtained. As such, these matter are ready for adjudication. Additionally, the Veteran’s representative has indicated that the is no other information or evidence to submit and has requested a determination on the record. See Correspondence received 1/15/2021 and Third Party Correspondence received 1/22/2021. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). If a veteran was exposed to an herbicide agent during active service, the diseases set forth in 38 C.F.R. § 3.309(e) will be presumed to be related to such service if they become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990).   1. Service connection for arteriosclerotic heart disease (coronary artery disease) is denied. 2. Service connection for diabetes mellitus type II is denied. The Veteran has contended that he is entitled to presumptive service connection because while stationed in Ft. McClelland where he was exposed to Agent Orange (AO) when he was required to walk through and around an area sprayed to kill brush and weeds known as “Tiger Village” a mockup of a village in Vietnam. See Statement in Support of Claim (NOD) received 8/18/2011. Alternatively, the Veteran contends that he is entitled to direct service connection because he was exposed to chemical agents during his service at Ft. McClelland as a chemical decontamination specialist. See Form 9 received 8/28/2020. The record has already established current DM and CAD disabilities and this element of service will not be discussed further. Presumptive service connection based on 38 C.F.R. § 3.309(e) The Board finds that the preponderance of the evidence is against presumptive service connection based on exposure to herbicide agents, including claimed exposure to AO. The Veteran does not allege, nor does the record support, that he served in Vietnam, as such presumptive service connection on the basis of herbicide exposure is not warranted. See 38 C.F.R. §§ 3307, 3309; see also Certificate of Release or Discharge from Active Duty received 8/16/1974. Rather, the Veteran has asserted that he was exposed to herbicide agents, specifically AO, while stationed in Ft. McClelland. The RO has taken steps to verify the Veteran’s assertion of exposure to herbicide agents while stationed at Ft. McClelland and found that historic records do not document transportation, storage or usage of AO or other tactical herbicide agents at Ft. McClelland, Fort Bragg, NC nor Ft. Lewis during the Veteran’s service. See Military Personnel Record received 7/26/16 at page 44; see also Email Correspondence received 3/15/2013 and DPRIS response received 3/19/2014. The Board finds that the VA has fulfilled its duty to assist since it took adequate steps to verify the Veteran’s claims of herbicide agent exposure. The Veteran has not submitted any evidence beyond his assertion that he was exposed to herbicide agents, accordingly the Board finds the preponderance of the evidence specifically historical records from the Department of Defense showing no herbicide agent exposure during the Veteran’s service in Ft. McClelland nor his other service locations, weigh heavily against the claim. Therefore, presumptive service connection due to herbicide agent exposure is denied. See 38 C.F.R. §§ 3.307, 3.309. Direct Service Connection Although, the Board has denied presumptive service connection based on exposure to an herbicide agent, the Veteran may still be service connected for arteriosclerotic heart disease (coronary artery disease) and DM Type II on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). 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. The Board concludes that, while the Veteran has a diagnosis of arteriosclerotic heart disease (coronary artery disease) and DM Type II, the preponderance of the evidence is against finding that they began during active service, or are otherwise related to an in-service injury, event, or disease. Service connection for DM, Type II In the January 2019 JMR, the Court of Appeals for Veterans Claims (the Court) vacated the January 2018 Board decision on these issues finding that an April 2017 VA examination was inadequate. Specifically, the JMR found that the negative nexus opinion on the issue of service connection for DM Type II relied on an inaccurate factual premise since it was based in part on the assertion that the Veteran had not been exposed to chemicals during his service. See CAVC Decision received 1/30/2019. Therefore, the Board will not consider this examination report in adjudicating this matter as it is not probative. On remand, the Veteran was provided an in-person VA examination in December 2019. The December 2019 VA examiner found that it was less likely than not that the Veteran’s DM Type II was directly related to service since his military record did not show exposure to herbicide agents and the Veteran was unable to recall what chemicals he was exposed to during service as a result of his MOS as a decontamination specialist, therefore since there was no proof of exposure to chemical agents that can lead to the development of diabetes mellitus, the December 2019 examiner found that it was less likely than not that the Veteran’s DM Type II was related to his MOS or time in service. See C&P Exam received 12/24/2019 at pages 2-3. The December 2019 VA examiner reviewed the VA e-folder before reaching the conclusion that there was no proof of exposures to chemicals that can lead to development of DM Type II. See C&P Exam received 12/24/2019 at page 1. In September 2020, the Board remanded the claim for an addendum opinion that discussed the nature and etiology of the Veteran’s DM Type II. See BVA Remand received 9/24/2020. On remand, the Veteran was provided another examination in January 2021. The January 2021 examiner also concluded that the Veteran’s DM Type II was less likely than not incurred in or caused by service since the Veteran was not exposed to herbicide agents while in service and related his DM Type II to lifestyle and genetic factors. To support the conclusion, the January 2021 examiner cited to a peer reviewed journal, Oman Medical Journal. See C&P Exam received 1/07/2021 at page 4. The Board finds that the two medical opinions when taken together are adequate and entitled to great probative weight because the examiners reviewed the Veteran’s eFolder, conducted an in person interview of the Veteran, and provided rationales that are based on the Veteran’s medical history and accepted medical knowledge, e.g. citation to medical treatise. The Veteran has submitted private medical opinions in support of his claim. The first from Dr. W.M. found that the Veteran’s weight was a significant contributor in the development of his DM Type II which he then related to chemical exposure during service. See Third party correspondence received 5/29/2015. The Board gives the opinion no probative weight since it did not list what chemicals the Veteran was exposed to and how they contributed to his weight gain and subsequent development of diabetes. Relatedly, the Veteran submitted a letter from his provider, Dr. S.L. His provider stated, “it is not unreasonable to believe that many of his conditions are related to his prior military service and exposure to workplace chemical hazardous materials, based on existing public information linking these hazardous materials to… diabetes, heart disease”. See Medical Treatment Record received 6/17/2019. This nexus statement again does not state what chemicals the Veteran was exposed to in service nor how those chemicals would cause DM Type II decades afterwards. Accordingly, the Board gives the Dr. S.L.’s opinion no probative weight. Additionally, the Veteran’s service treatment records are negative for symptoms and diagnosis of DM Type II. See STR received 10/18/2017. At separation, no abnormalities were noted, and the Veteran stated that his health was “good”. Id. at 11. A review of his treatment records show that the Veteran has a family history of DM Type II, his mother also had the condition. See Medical Treatment Record received 8/26/2019. The Veteran’s representative has submitted argument stating that the VA Public Health Announcement lists chemicals found in Fort McClelland. See Form 9 received 8/28/2020 at page 3; see also Correspondence received 2/06/2019. After reviewing the article, the Board finds that article’s statement that “there are currently no adverse health conditions associated with service at Fort McClellan” is critical. Id. at 3. This evidence tends to weigh against an association between the known chemicals at Ft. McClellan and poor health conditions, such as DM and CAD. Although, chemical exposure has been acknowledged, the Veteran must support the claim until the evidence is in equipoise, which he has not shown in this case. 38 U.S.C. § 5107(a). Given the above, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for DM Type II, and it is therefore denied. Service connection for arteriosclerotic heart disease (coronary artery disease) The Veteran was provided a VA examination in December 2019. The December 2019 VA examiner diagnosed the Veteran with coronary artery disease (CAD) and the related conditions of atrial fibrillation and myocardial infarction. See C&P Exam received 12/24/2019 at page 2. The VA examiner opined that it was less likely than not that his CAD was incurred in or caused by his service since he was not exposed to herbicide agents while in service. In finding service connection less likely than not due to service, the 2019 VA examiner specifically stated that there was no evidence that the Veteran was exposed to chemical agents that can lead to CAD. Id. The December 2019 examiner reviewed the eFolder, which includes the articles submitted, and specifically cited the Veteran’s hearing wherein he testified that he would decontaminate machines before concluding that it was less likely than not that his CAD was caused by or incurred during service. Id. at page 1. An addendum opinion was provided in January 2021. The January 2021 VA examiner also found it less likely than not that the Veteran’s CAD was incurred in or caused by his service, since he had no in-service exposure to herbicide agents since he had not served in country in Vietnam. See C&P Exam received 1/07/2021. In finding that his CAD was less likely than not caused by his service MOS, the January 2021 examiner opined that CAD is the result of aging along with his history of smoking, hyperlipemia, and hypertension. Id. at page 4. The January 2021 examiner cited the Journal of Industrial Medicine to support her conclusions. The Board acknowledges the Veteran’s attorney’s contention that the 2021 VA examination stated that smoking was a possible etiology and that the Veteran has never been a smoker. However, VA treatment records, to include a March 2020 primary care note, indicate that the Veteran quit smoking 25 years ago. Thus, while the Veteran has not smoked in over two decades, there is some history of smoking in the distant past. The Board also acknowledges the articles submitted by the Veteran regarding a connection between chemical and CAD and DM. These article are more generic as they do not discuss the specific facts related to this Veteran and are capable of triggering VA’s duty to assist to get a medical examination and opinion. VA has remanded these matters on several occasions to supplement the record with competent medical evidence and finds that this has more weight, as discussed above and next. The Board finds that when taken together the opinions of the two VA examiners are adequate and entitled to great probative weight since both examiners reviewed the Veteran’s eFolder, conducted in person examination and interview of the Veteran before concluding that it was less likely than not that his CAD was incurred in or caused by his active service. As stated above, the Veteran submitted a letter from Dr. S.L. which the Board gives little probative weight to since the opinion failed to provide an adequate rationale because it did not state what chemicals the Veteran was exposed to that cause his CAD decades after his active duty service nor cite any medical findings that support its conclusion. In sum, it has been duly considered, but it is outweighed by the other competent medical evidence of record. The Board also reviewed the Veteran’s service treatment records which were negative for in service complaints or diagnosis of CAD. As stated above, the Veteran separated from service with no abnormalities and in good health. See STR received 10/18/2017. A review of the Veteran’s medical records shows that although he does not have a family history of CAD, his providers have stated that he has multiple risk factors for CAD, including age, hypertension, and diabetes. See Medical Treatment record received 8/03/1999 at page 5. This evidence tends to weight against in-service incurrence as it points to other non-service related factors.   Given the aforementioned, the Board finds the preponderance of the evidence is against service connection for arteriosclerotic heart disease (coronary artery disease) and it is therefore denied. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.