Citation Nr: 21022663 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-19 262 DATE: April 19, 2021 ORDER Entitlement to service connection for diabetes mellitus, Type II, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for ischemic heart disease, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for lung cancer, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran was exposed to herbicide agents during his service in Korea. 2. The weight of the evidence is against finding that diabetes mellitus, Type II, began during active service, or is otherwise related to an in-service injury or disease. 3. The weight of the evidence is against finding that the Veteran’s diabetes mellitus, Type II was shown as chronic in service, or manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established. 4. The preponderance of the evidence is against finding that ischemic heart disease, to include as due to herbicide agent exposure, began during active service, or is otherwise related to an in-service injury or disease. 5. The weight of the evidence is against finding that the Veteran’s ischemic heart disease was shown as chronic in service, or manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established. 6. The preponderance of the evidence is against finding that lung cancer, to include as due to herbicide agent exposure, began during active service or is otherwise related to an in-service injury or disease. 7. The weight of the evidence is against finding that the Veteran’s lung cancer was shown as chronic in service, or manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, Type II, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for ischemic heart disease, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for lung cancer, to include as due to herbicide agent exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1970 to October 1971, which was honorable for VA purposes, and from June 1973 to June 1974 which was not honorable for VA purposes. These matters were previously before the Board of Veterans’ Appeals (Board) from separate rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The May 2015 rating decision pertained to service connection for diabetes mellitus and ischemic heart disease. The April 2016 rating decision pertained to lung cancer. In February 2018, the Veteran and spouse testified at a Board hearing before the undersigned Judge. In a December 2019 decision, the Board denied service connection for diabetes mellitus, Type II, ischemic heart disease, and lung cancer. The Veteran appealed that decision to the United States Court of Veterans Claims (CAVC). In an October 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the portion of the December 2019 decision that denied the Veteran’s diabetes mellitus, Type II, ischemic heart disease, and lung cancer claims, remanding the matters to the Board for further proceedings consistent with the JMPR. The Veteran passed away during the pendency of the appeal, the matters were dismissed by the Board. Subsequently, the Appellant was substituted for the Veteran. The claims were reopened and are again before the Board for review consistent with the October 2020 JMPR. Service Connection 1. Diabetes mellitus, Type II, to include as due to herbicide agent exposure. 2. Ischemic heart disease (IHD), to include as due to herbicide agent exposure. 3. Lung cancer, to include as due to herbicide agent exposure. It is contended that the claims of service connection of diabetes mellitus, IHD, and lung cancer result from herbicide exposure during the Veteran’s service in Korea between 1970 and 1971, in proximity to the Korean Demilitarized Zone (DMZ) (07/14/2014 VA 21-4138 Statement in Support of Claim). If a Veteran was exposed to an herbicide agent during active service, specific diseases provided at 38 C.F.R.§3.309 (e) shall be service-connected if the requirements of 38 C.F.R.§3.307 (a) (6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R.§3.307 (d) are also satisfied. The term "herbicide agent" means a chemical in an herbicide, used in support of the United States and allied military operations during the Vietnam era 38 C.F.R. § 3.307 (a) (6). In certain circumstances, a Veteran may have been exposed to herbicides while serving in Korea. Specifically, a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the department of Defense, operated in or near the Korean demilitarized zone (DMZ), in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such serve to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. 38C.F.R.§3.814(c)(2). 38C.F.R.§3.307 (a)(6)(iv). The lists of diseases that are presumed to be related, or due to, herbicide exposure are updated by the Secretary based on information provided by the National Academy of Sciences (NAS). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924 -47,928(Aug. 10, 2012). The diseases listed at 38C.F.R.3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a) (6) (ii). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309 (e) are applicable. During the pendency of the claims, the Veteran had diagnoses of diseases considered at 38 C.F.R.§3.309 (e), specifically, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) (the Veteran reported having been diagnosed in 1984, 5/1/2015 CAPRI, p. 96); respiratory cancers (cancer of the lung, bronchus, larynx or trachea) (the Veteran was diagnosed with lung cancer in April 2015, 5/1/2015 CAPRI, pg. 6); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina) (the Veteran was diagnosed with IHD in May 2004, 8/3/2014 Medical Treatment Record Non-Government Facility, p. 12). In an October 2013 submission, the Veteran asserted that from August 1970 to December 1970 he was stationed in Uijeongbu, Korea (Camp Ross), and from October 1970 to October 1971 he was stationed in Uijeongbu, Dongducheon, Seoul, Korea (10/07/2013 VA 21-0781 Statement in Support of Claim for PTSD). In another submission, the Veteran asserted that he was stationed at Camp Rossi, Yongjugol, Korea from September 12, 1970 to October 22, 1971 (06/09/2015 VA 21-0781, Statement in Support of Claim for PTSD). During his February 2016 DRO hearing, the Veteran testified that he was an engineer and ran missiles in Camp Casey, believing this was when he was exposed to herbicides (2/11/2016 Hearing Testimony) During his February 2018 hearing, the Veteran testified that when he first arrived in Korea, he was stationed in Uijeongbu, an aviation unit, and then ended up in Camp Red Cloud (2/09/2018 Hearing Testimony, p. 4). The Veteran testified that he “did sabotage” accessing tunnels at the DMZ (2/09/2018 Hearing Testimony, p. 4). The Veteran’s statements and testimony that he was an engineer, ran missiles, or did sabotage at the DMZ or served in an area in Korea, where herbicide exposure is presumed, are not supported by his service record or the findings of the Joint Services Records Research Center (JSRRC). While the Veteran was competent to describe his memory of his service, at what camps he served, and the nature of his duties, his statements were not credible in that regard. The Veteran’s statements are internally inconsistent with regard to the location and nature of his duties in Korea, claiming service in various camps and with various duties. In general terms, other evidence of record indicates the Veteran is not credible. It is noted that he has acknowledged having distorted the facts at the time of his induction to obtain an outcome favorable to him, that is avoiding being drafted (6/06/2019 Correspondence). Medical evidence from February 2020 also described the Veteran’s deceitfulness as indicated by conning others and lying for personal profit or pleasure (3/10/2020 C&P Exam, p. 2). Because of the Veteran’s general lack of credibility, taken together with the internal inconsistencies as to his statements regarding the locations and nature of his service in Korea, the Board assigns his statements and testimony no probative weight. The Board relies on his personnel file and research by the JSRRC with regard to the location and nature of his service. The Veteran’s DD214 reflects that he had active service in the United States Army which included 1 year, 1 month, and 19 days of foreign service in USARPAC, from March 1970 through October 1971. His DD 214 and record of assignments indicate his specialty code was powerman, and his service was with Co B 2nd Avn Bn 2d Infantry Division; Btry B 2nd (HAWK) 71st Arty; and HHB 2nd Bn (HAWK) 71st Arty. In April 2016, JSRRC stated they were unable to obtain a 1970 unit history submitted by the 2nd Battalion, 71stArtillery. However, the 1971 and 1972 unit history submitted by the 2ndBattalion, 71st Artillery, and the 1970-1971 8th United States Army Chronologies were located. The records document that the unit was located at Camp Irwin, South Korea, and did not document the use, storage, spraying or transportation of tactical herbicides to include Agent Orange. Additionally, records do not document any specific duties performed by unit members along the DMZ, to include members being sent to the DMZ to identify Korean positions (4/19/2016 DPRIS Response, p. 1). The August 2018 response from JSRRC elaborates, “The history documents Company B (Co B), 2ndAvn Bn was located at Stanton Army Airfield, South Korea. The 2ndAvn Bn was tasked in 1970 to provide the division with aircraft to be used in command and control, air mobility training, reconnaissance and administrative flights. The types of missions varied from short haul flights in the Division Area, to longer flights to such places as Taegu and P’yong Taek, to very demanding and difficult flights into the vicinity of the DMZ. However, the records do not document the use, storage, spraying, or transporting of tactical herbicides to include Agent Orange” (8/27/2018 Email Correspondence, p. 2). Before the amendment of 38 C.F.R. § 3.307 (a) (6) (iv), which became effective February 24, 2011, A conceded exposure to herbicides on a direct basis for Veterans who served between April 1968 and July 1969 in one of the groups listed under M21-1, Part IV, Subpart ii, 1.H.4.b. The revision, effective February 24, 2011, extended the timeframe for presumed exposure to August 31, 1971, but again only for specified units. The Veteran’s unit is not found in that listing, suggesting that the unit did not serve in an area in which herbicides are known to have been applied. The Veteran’s medical record includes an October 1971 notation that the Veteran’s last separation exam had been conducted in September 1971 at Camp Red Cloud (3/26/2014 STR – Medical, pg. 7). Review of the Veteran’s September 1971 physical documentation, however, indicates the examining facility was 125th Med Det (OA) APO 96358 (3/26/2014 STR – Medical, pg. 69). At his hearing, the Veteran’s representative presented a May 2017 submission from a retired service member, P.M.S., who asserted that he served in the U.S. Army in South Korea from February 1969 to May 1972. P.M.S. recalled that Camp Irwin was the administrative area for batteries Bravo and Charlie, 2nd Bn (HAWK) 71st ADA, 38th Brigade (AD). He indicated that those assigned to any battalion in the 38th Brigade (AD) would have the bulk of their service at firing battery locations in the most elevated terrain available for the deployment of their weapon systems: the HAWK and Hercules air defense missiles. P.M.S. stated that often soldiers from various batteries in the northern sector were temporarily assigned to Camp Red Cloud where the battalion headquarters was co-located with HQ I Corps (GP). P.M.S. stated that Battery A of 2nd Bn (HAWK) 71st AD was physically closest to the DMZ but others throughout the northern sector were close as well. P.M.S. explained that a defoliant compound was used to keep the grass low and fields clear and open. P.M.S. asserted that soldiers on those tactical sites were widely exposed to the spraying (2/9/2018 Buddy/Lay Statement, p. 1-2). The Veteran also provided internet reports regarding Camp Irwin supporting that from 1955 through 1970, Camp Irwin served as home to the 24th Medical BN 24th Inf Div, 15th Medical BN 1st Cav Div and the 2nd Medical BN 2nd Inf. Div. From 1970 until it closed, Camp Irwin served as the ADMIN area for elements of the 2nd BN 71st ADA Brigade who manned air defense site 36 east of Pobwon-ni (2/9/2018Correspondence, p. 2). The internet pages also included maps of Korea showing Camp Red Cloud, Camp Casey, Camp Irwin, and the DMZ (9/24/2018 Correspondence; 2/09/2018 Correspondence). The Board finds the letter from P.M.S., the internet pages regarding Camp Irwin, and the maps to be of little probative weight. The letter from P.M.S. is generic in nature and does not suggest service with the Veteran. Although P.M.S. recalled use of a defoliant compound at Camp Irwin, JSRRC research revealed no documentation of the use, storage, spraying, or transporting of tactical herbicides to include Agent Orange. The Board assigns more weight to the JSRRC research with regard to whether the Veteran was exposed to herbicides at Camp Irwin, because the research was completed in relation to the Veteran’s service. The Board finds the letter from P.M.S., indicating the unit was “physically closest” to the DMZ is not suggestive of the Veteran’s service at or near the DMZ. Moreover, the letter does not suggest the Veteran or his unit served at the DMZ. Additionally, the maps of record show that Camp Irwin and Camp Red Cloud are not at or near the DMZ, also weighing against a finding of entitlement to presumptive service connection. Also of record is a September 2015 letter from R.J.M., MD, (10/7/2015 Medical Treatment Record –Government Facility, p. 1-3). The doctor noted the Veteran’s diagnoses had substantively direct association with Agent Orange exposure and there is literature to support the link of dioxins similar to the contaminants associated with Agent Orange in respiratory cancers.” The letter includes journal references. The Board acknowledges that the type of diseases, including lung cancer, that have inflicted the Veteran are those also often corresponding to herbicide agent exposure. The letter does not provide a specific opinion with regard to the Veteran’s medical case or claims and therefore is no more probative than the governing regulations 38 C.F.R. §§ 3.307 3.309 themselves. Moreover, the opinion presupposes herbicide exposure, which, as explained above, the weight of the evidence is against such a finding. Collectively, the Board finds the most probative evidence of record weighs against a finding that the Veteran served in an area in Korea that herbicides are known to have been applied. As the Veteran is not presumed to have been exposed to herbicides during service, and, to the extent that he has diagnoses of presumptive disorders, he is not entitled to presumptive service connection based on herbicide exposure. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Establishing service connection on a direct basis requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. 38 U.S.C. §§ 1110, 1131; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing service connection for certain chronic disabilities listed in 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302(1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38C.F.R.§§3.303(b), 3.309(a). In this case, the record is silent for in-service diagnoses of or treatment for diabetes mellitus, type II, IHD, or lung cancer. The record indicates the Veteran was diagnosed with diabetes mellitus, type II potentially as early as 1984 (5/1/2015 CAPRI, p. 96), a significant number of years post-service. The Veteran was diagnosed with lung cancer in April 2015 (5/11/2015 CAPRI, p. 6) and IHD in May 2004 (8/3/2014 Medical Treatment Record Non-Government Facility, p. 12). Given the above, the evidence fails to establish continuity of symptomatology, and the Veteran has not otherwise contended any such continuity of symptomatology. The Board has also considered whether the Veteran can be found to have been exposed to herbicide agents on a fact found basis. For the reasons set forth previously, the Board finds the Veteran’s lay statements of herbicide exposure not credible and are not assigned probative weight. The other evidence of record, to include his personnel record and research from JSRRC, weigh against a finding that the Veteran was exposed to herbicides during his service. Accordingly, the Board finds the weight of the evidence is against a factual finding of in-service herbicide exposure on a non-presumptive basis and no medical evidence links the current diagnoses to any other aspect of the Veteran’s service. In this regard, the Board has considered whether any additional development or remand is required in this case, and has determined remand would not assist the Board with review of evidence of record and would only result in imposing additional burdens on VA with no benefit flowing to the Appellant, which is to be avoided. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); 38 U.S.C. § 7261(b). The Board has also considered the Board decisions of record, presented in support of the Veteran’s claim (9/16/2019 BVA Decision, 9/16/2019 BVA Decision, 2/11/2016 CAVC Decision). In addition to the case being factually distinct from the appeal before the Board, pursuant to 38 C.F.R. § 20.1303, Board decisions are only binding with respect to matter decided and Board decisions are not precedential, do not establish VA policies or interpretations of general applicability. Accordingly, in the absence of any in-service findings of diabetes mellitus, IHD, or lung cancer, and in the absence of a link between the Veteran’s current diagnoses of these diseases to his service, the Board finds that a preponderance of the evidence weighs against the claims. Accordingly, the claims of service connection for diabetes mellitus, IHD, and lung cancer are denied. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.