Citation Nr: 21024912 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 18-19 132 DATE: April 26, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to herbicide agent exposure is denied. Entitlement to service connection for diabetes mellitus, type II (diabetes), to include as secondary to herbicide agent exposure is denied. REMANDED Entitlement to service connection for mitral valve prolapse is remanded. Entitlement to service connection for asthma is remanded. FINDINGS OF FACT 1. Exposure to herbicide agents is not presumed, and the Veteran has not otherwise demonstrated actual exposure. 2. The Veteran has hypertension and diabetes; however, the evidence does not establish an in-service incurrence or a nexus. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for diabetes have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1967 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2019 decision, the Board denied service connection for diabetes and hypertension and remanded the claims for asthma and mitral valve prolapse for additional development. The Veteran appealed the Board’s denials to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, pursuant to an October 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s June 2019 decision and remanded the claims for action consistent with the terms of the parties’ JMPR. In February 2021, additional VA treatment records were received after the most recent statement of the case for the claims for diabetes and hypertension and the supplemental statement of the case for the claims of asthma and mitral valve prolapse. As the records are not relevant to the claims being decided herein, a remand for RO consideration is unnecessary. See 38 C.F.R. § 20.1304. Entitlement to service connection for hypertension and diabetes. The Veteran contends that his hypertension and diabetes are related to his active duty service, specifically exposure to herbicide agents. For the reasons that follow, the Board finds that service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include diabetes and hypertension, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). In addition, service connection may be established on a presumptive basis for certain diseases resulting from exposure to herbicide agents, such as Agent Orange, if a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam (Vietnam) during the period from January 9, 1962 to May 7, 1975, absent affirmative evidence to establish that the Veteran was not exposed to such herbicide agent during that service. See 38 C.F.R. §§ 3.307(a)(6)(iii). Additionally, the Department of Defense has determined that herbicide agents were used along the Korean Demilitarized Zone (DMZ) from April 1, 1968, to August 31, 1971; veterans assigned to one of the units listed as being at or near the Korean DMZ during that time period also are presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iv). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for certain enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). Diabetes is one of the enumerated diseases. The evidence does not show, and the Veteran does not contend, that he had service in Vietnam, nor does he contend that he served along or near the Korean DMZ. Accordingly, herbicide agent exposure is not presumed. Even if a veteran is not presumed to have been exposed to herbicide agents, he or she can still prove exposure on a direct basis. If the veteran is able to do so, has one of the enumerated diseases in 38 C.F.R. § 3.309(e), and such disease becomes manifest within the required time period prescribed in 38 C.F.R. § 3.307(a)(6), then he or she will be entitled to service connection on a presumptive basis. Turning to the evidence of record, there is no dispute that the Veteran has current diagnoses of hypertension and diabetes. The Veteran’s service treatment records (STRs) do not show any complaints, treatment, or diagnoses related to hypertension or diabetes. On his January 1969 Report of Medical Examination at separation, all body systems were noted as normal. The Veteran contends that he was exposed to herbicide agents while stationed at Camp Ames in Korea. Specifically, he contends that his duties included climbing fences and going between the two layers of fencing along the perimeter to set flares and that this area had dead vegetation that he believes was sprayed with herbicide agents. See August 2015 correspondence; May 2016 correspondence. The Veteran’s service personnel records show that he served in Korea from January 1968 to February 1969, and his DD Form 214 shows that he served as a military policeman. The Board has no reason to doubt the Veteran’s description of his duties. However, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran was exposed to herbicide agents. After the Veteran submitted details regarding his reported exposure, a request was submitted to the Joint Services Records Research Center (JSRRC) to request verification of the Veteran’s exposure to herbicide agents. In its response, the JSRRC noted that while records confirm that the Veteran served at Camp Ames, the records do not document the use, storage, spraying, or transporting of herbicide agents at that base. It also noted that the records do not document any specific duties performed by the Veteran’s unit along the DMZ. While the Veteran contends that herbicide agents were used at Camp Ames, the Board finds it significant that the Veteran never witnessed any herbicide agents being used or stored at the base. For example, the Veteran has not indicated that he saw containers with herbicide agent labels at the base or anyone spraying containers with herbicide agent labels along the base perimeter. Rather, he has indicated that he was not aware of herbicide agent use at the base until his representative informed him of such. See August 2015 correspondence. Instead, it appears that the Veteran’s belief that herbicide agents were used at Camp Ames is based on the dead vegetation between the fence lines and that someone told him the vegetation was sprayed with something. However, lack of vegetation alone is not necessarily evidence that herbicide agents were used. The evidence of record indicates that there could be multiple reasons for the lack of vegetation, such as manual clearing or the use of flares that caused fires. Even the Veteran’s own submissions and statements tend to show such. See Prior Board decision submitted by Veteran in May 2016 (noting that the Vegetation and Control Program documents (CY 68) notes the use of manual clearing); April 2018 substantive appeal (describing a fire he was involved along the fence line of the base after setting a flare). Moreover, while the Veteran reports that someone told him the vegetation was sprayed with something, he also noted that he was not told what it was sprayed with. If the vegetation was dead due to the spraying of a substance, the JSRRC response which found no evidence of herbicide agents being used at Camp Ames indicates that whatever was sprayed was not herbicide agents. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that the absence of supporting records can weigh against lay evidence asserting certain non-combat events during service such as chemical exposure). The Board acknowledges the Veteran’s statement that herbicides were known to have been used around fence lines, guard towers, and observation posts. See May 2016 correspondence. To the extent the Veteran contends that exposure should be found based on the perimeter duty he conducted, the Board notes that herbicide agents were only known to have been used around the perimeters of certain specified locations. Camp Ames is not included in those listed locations. Additionally, while the Veteran contends that herbicide agents were used and disposed of in locations other than the DMZ, the evidence the Veteran has submitted in support of his claim only discusses herbicide agent use in or near the DMZ or in Vietnam. See May 2016 correspondence; articles and prior Board decisions submitted in May 2016. The Veteran’s submissions are not relevant to this case and are of no probative value. The Board also acknowledges the Veteran’s contention that herbicide agents were buried at Camp Carroll which was in close proximity to Camp Ames. However, the article the Veteran submitted in support of his contention indicates that this occurred in the mid to late-1970’s, after the Veteran’s service in Korea. In his May 2016 correspondence, the Veteran also contends that herbicide agents were dumped into the Han River in Korea from a base in Seoul. However, the articles the Veteran submitted in support of this contention show that the chemical dumped was formaldehyde, not herbicide agents, and such occurred in 2000. In his April 2018 substantive appeal, the Veteran also contends that the Army’s Vegetation and Control Program (CY 68) documents show that herbicide agents were used in Korea from April 1968 to August 1968. However, a review of the Board decision that describes that document instead shows that it only indicates that herbicides were used in 1963 and 1967. In any event, the decision is not binding in this case. The Board also acknowledges the Veteran’s report of going to Camp Casey. Specifically, the Veteran has reported that he went to Camp Casey in order to get soldiers that had made a wrong turn and were being detained. See May 2016 correspondence. To the extent the Veteran contends that he was exposed to herbicide agents while at Camp Casey, the record does not substantiate any herbicide exposure in this regard. Moreover, even if herbicide agents were used, the Board finds it unlikely that the Veteran would have come into contact with them given the fact that the Veteran asserts that he only went there once for the limited purpose of picking up soldiers that had gotten lost. The Board finds that the Veteran’s assertions of being exposed to herbicide agents in this regard are not credible. Again, the Board acknowledges the prior Board decision submitted by the Veteran in which herbicide exposure in Korea was conceded on a facts found basis. The Board notes that previously issued Board opinions are binding only with regard to the specific case decided. They are non-precedential, and each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. 38 C.F.R. § 20.1303. Therefore, the Board assigns the decision no probative value in determining whether the Veteran was exposed to herbicide agents. In light of the foregoing, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran was exposed to herbicide agents. Additionally, as noted above, the Veteran’s STRs are silent as to any complaints, treatment, or diagnoses related to these conditions. The Board also notes that the Veteran is not competent to create a nexus between his current diagnoses and service or any alleged event of service. Accordingly, the preponderance of the evidence does not show that the Veteran’s hypertension or diabetes was incurred in service or is in any way related to service. The Board has considered whether service connection for hypertension or diabetes is warranted on a presumptive basis for chronic diseases. 38 C.F.R. § 3.309(a) However, the Veteran does not contend, and the evidence does not show, that he suffered from hypertension or diabetes symptoms in and since service, or that his conditions manifested to a compensable degree within a year of separation. Therefore, neither hypertension nor diabetes is presumed to have been incurred in service. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board acknowledges that VA has not obtained an examination or opinion for hypertension or diabetes. However, because the Board finds that the evidence weighs against a finding of an in-service incurrence or any relationship to service, an examination or opinion does not need to be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the foregoing, service connection for hypertension and diabetes is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for mitral valve prolapse. The Veteran seeks service connection for his mitral valve prolapse. The Board finds that additional development is necessary prior to adjudication. The Board remanded the claim in June 2019 in order to obtain an examination and opinion. As there was evidence that the Veteran’s mitral valve prolapse may have pre-existed his military service, the Board requested an opinion on whether there was clear and unmistakable evidence that the condition was a pre-existing condition, and if there was not clear and unmistakable evidence of such, the examiner was asked to opine whether it was directly related to service, to include the Veteran’s reports of fainting and dizzy spells. Pursuant to the remand, an examination and opinion was obtained in January 2020. The examiner opined that there was not clear and unmistakable evidence that the condition pre-existed the Veteran’s military service. Thus, the presumption of soundness is not rebutted, and the claim is one for direct service connection. However, no opinion regarding direct service connection was provided. While the examiner did note in his rationale that based on the available medical records and exam findings direct service connection is not verified, to the extent this was an opinion regarding direct service connection, the Board finds it conclusory and therefore inadequate. Accordingly, a remand is required to obtain an opinion addressing whether the Veteran’s mitral valve prolapse is directly related to his active service. 2. Entitlement to service connection for asthma. The Veteran seeks service connection for asthma. The Board also remanded the claim in June 2019 in order to obtain a VA examination and opinion. The Board requested the examiner to identify any and all pulmonary issues the Veteran currently suffers from and opine as to whether each condition identified was related to his military service, including his reported exposure to fire and smoke inhalation. A review of the record shows that no VA examination was obtained. While an opinion was obtained in November 2019, a review of the rationale does not indicate that the examiner considered the Veteran’s reported exposure to fire and smoke inhalation in formulating the opinion. Accordingly, a remand is required to obtain a VA examination and new opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain a VA medical opinion regarding the etiology of the Veteran’s mitral valve prolapse from a qualified medical professional. The need for a physical examination is left to the discretion of the VA examiner. The examiner must review the entire claims file and a copy of this Remand. The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s mitral valve prolapse had its onset in, or is otherwise related to, active service, to include his reports of fainting spells and dizziness. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed asthma. The examiner must review the claims file and a copy of this Remand. The examiner is asked to: a) Identify any and all pulmonary issue(s) that the Veteran currently suffers from. b) For each identified pulmonary issue, opine whether it is at least as likely as not (a 50 percent or greater probability) that it had its onset in, or is otherwise related to, active service, to include the Veteran’s reported exposure to fire and smoke as well as his August 1968 complaint of recurrent sore throat and epigastric pain. (Continued on the next page)   A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.