Citation Nr: 21027452 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-56 083 DATE: May 5, 2021 ORDER Entitlement to service connection for ischemic heart disease is denied. Entitlement to service connection for type II diabetes mellitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's ischemic heart disease began during active service, manifested within a year of separation from service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's type II diabetes mellitus began during active service, manifested within a year of separation from service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for type II diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1968 to April 1970. In April 2019, the Board issued a decision denying these claims. In a September 2020 Memorandum Decision, the Court of Appeals for Veterans Claims (the Court) vacated and remanded these issues for further proceedings. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or caused by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For Veterans who have served on active duty for 90 days or more during a period of war or after December 31, 1946, certain chronic diseases, to include diabetes and ischemic heart disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including type II diabetes and ischemic heart disease, are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. 38 C.F.R. § 3.309(e). The law provides a presumption of service connection for certain diseases, to include diabetes mellitus, type II, that are associated with exposure to herbicide agents and that become manifest within a specified time period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam or in or near the Korean DMZ during specified periods of time, even if there is no record of evidence of such disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Notwithstanding the aforementioned provisions relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 1. Entitlement to service connection for ischemic heart disease 2. Entitlement to service connection for type II diabetes mellitus The Veteran contends that he is entitled to presumptive service connection for ischemic heart disease and type II diabetes mellitus (diabetes) due to exposure to herbicide agents. The Veteran, who served in the U.S. Army, does not contend that he served in the Republic of Vietnam or visited the Republic of Vietnam during active service. Rather, he contends that his service in Naha Wheel, Okinawa, Japan as a longshoreman with the 412th Transportation Company from late September 1968 to early April 1970 exposed him to herbicide agents. According to the Veteran, his duties discharging cargo from ships included moving vehicles and equipment that had been in the Republic of Vietnam, and his working on, under, and around these vehicles and equipment exposed him to herbicide agents. He says that officers told him that the residue was Agent Orange and that the vehicles and equipment had come from Vietnam. Presumptive Service Connection The record does not support the Veteran's contention that he was exposed to herbicide agents. The Agency of Original Jurisdiction (AOJ) concluded in a September 2017 Memorandum that there was insufficient evidence to concede exposure to herbicide agents. The memorandum considered details of the Veteran's claimed exposure to herbicide agents contained in the Veteran's statements and provided by the Veteran's attorney. The memorandum noted that the Veteran did not serve in the Republic of Vietnam and did not visit the Republic of Vietnam during active service. The September 2017 memorandum was based, in part, on a May 2017 response from the Joint Services Records Research Center (JSRRC) in which it reported that records from the 412th Transportation Company showed herbicide agents were not used, sprayed, or stored in Okinawa, Japan. The September 2017 memorandum was based on the Department of Defense (DoD) document on Herbicide Tests and Storage outside of Vietnam, revised March 21, 2017, which did not list Japan as a site of herbicide tests and storage. The record also includes email correspondence citing to Defense Department information to the effect that herbicides were not used or stored in Okinawa and that Okinawa was not a link in the supply chain for shipping herbicide agents to the Republic of Vietnam. Thus, the Defense Department information cited is consistent with the JSRRC's findings that herbicide agents were not shipped through, used, sprayed, or stored in Okinawa. The AOJ memorandum concluded that, in the absence of credible evidence to corroborate the Veteran's claimed herbicide exposure, the AOJ cannot concede that he was exposed to herbicides during service. The Board recognizes the Veteran's main contention that he was secondarily exposed to herbicide agent residue during his Okinawa service while handling vehicles and equipment that allegedly was returning from Vietnam and covered in herbicide residue. As noted in the September 2020 Memorandum Decision, the Veteran is competent to state the condition of his work clothes, the appearance of the vehicles he off-loaded, and the conversations he had with officers who told him that the equipment and vehicles had shipped from Vietnam and the residue they were coated with was Agent Orange. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a veteran is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). However, the Board also notes that the evidence of record does not contain evidence that the Veteran has training or experience in chemical analysis of materials or herbicide agents. Although he is competent to report those things he directly observed, such as hearing other officers talking about equipment, and seeing some kind of chemical residue on equipment, he is not competent to conclude that the vehicles or equipment he handled actually were contaminated by herbicide agent residues, or that he indeed was secondarily exposed to herbicide agents through contact with those vehicles and equipment. The Board assigns less probative weight to the Veteran's statements that he heard other officers discussing that equipment and vehicles were contaminated with herbicides, as there is no evidence that these officers had direct knowledge that these vehicles and equipment may have exposed to particular herbicides or other chemicals. To the extent the Veteran claims he was exposed to herbicide agents while serving in Japan, the Board finds these statements are not credible. These statements are contradicted by the overall evidence of record, including JSRRC findings and DoD publications which do not list Japan as a site of herbicide agent testing and storage. This determination regarding credibility is a factual determination based on a preponderance of the evidence which weighs against a finding that the Veteran was exposed to herbicide agents during service. This determination is not a medical finding regarding the nature and etiology of the Veteran's ischemic heart disease and diabetes. The Board also notes that there is no presumption of "secondary exposure" based on handling equipment and vehicles that were once allegedly in Vietnam. The "second-hand" exposure alleged by the Veteran is too remote and attenuated to support a finding of actual exposure. Importantly, the Veteran has merely contended generally that the vehicles he handled in the course of his duties during his Okinawa service had been exposed to herbicide agents in Vietnam. He essentially is alleging some residual contamination from those vehicles, but such vehicles' presence in Vietnam has not been verified. Moreover, even assuming that such vehicles' presence in Vietnam was verified, there is no scientific basis of record to quantify the extent, if any, of the vehicles' alleged herbicide residue contamination. At May 2015 testimony in a hearing before a VA Decision Review Officer, the Veteran testified that J.B., a VA nurse practitioner who treated the Veteran, told him that his diabetes had characteristics similar to the diabetes mellitus of herbicide-agent exposed veterans. The Veteran also reported that he had a severe reaction to insulin. According to the Veteran, J.B. told him that many herbicide-agent exposed veterans could not take insulin because of reactions similar to the Veteran's. The Veteran is competent to report what healthcare providers have told him. Per the Court's decisions in Smith v. Wilkie, 32 Vet. App. 332, 340 (2020), and Miller v. Wilkie, 32 Vet. App. 249 (2020), medical examinations can inform the Board's credibility findings. Smith, 32 Vet. App. At 340; Miller, 32 Vet. App. at 261. As noted in the Court's September 2020 Memorandum Decision, J.B.'s opinion could have lent credence to the Veteran's lay statements. See Smith, 32 Vet. App. at 340 (noting that, because "medical opinions can inform credibility findings, "the duty to assist may require that the Board obtain a medical opinion before assessing the credibility of lay evidence); Miller, 32 Vet. App. at 260. To the extent that an oral observation that one medical characteristic matches another person's medical history can be considered a medical opinion, the Board finds J.B.'s opinion is not adequate. A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The purported opinion is somewhat vague and conclusory and does not describe with precision how the Veteran's condition shows characteristics consistent with herbicide exposure. The purported opinion does not contain an overall discussion of the Veteran's medical history and makes no citation to medical literature. Therefore, the purported opinion is not adequate and entitled to low probative weight, and is outweighed by the documented evidence from JSRRC and DoD that herbicide agents were not tested or stored in Okinawa, Japan. In light of the foregoing, the Board finds that the competent and credible evidence of record weighs against finding that the Veteran was exposed to herbicide agents during active service, to include his service with the 412th Transportation Company at Naha Wheel in Okinawa, Japan. As the evidence is not in equipoise as to this issue, the benefit of the doubt rule is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 52(1990). As the competent and credible evidence of record does not support that the Veteran was exposed to herbicides, there is no presumption that either his current type II diabetes or ischemic heart disease are related to his active service. Thus, entitlement to presumptive service connection for both disorders is denied. See 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e). Direct Service Connection The Veteran does not contend, and the record does not reflect, that ischemic heart disease or diabetes had their onset in service or within the first year following the Veteran's separation from active service. To the contrary, in his February 2012 VA Form 21-526, Veteran's Application for Compensation and/or Pension, the Veteran noted ischemic heart disease was diagnosed in 1992 and diabetes was diagnosed in 1998. Moreover, the probative evidence of record does not show a direct etiological relationship between either diagnosis and an in-service injury, event or illness. The Board notes that J.B.'s opinion presumes that the Veteran was exposed to herbicide agents based on certain features of his diabetes mellitus, type 2. As discussed above, the opinion did not discuss the Veteran's overall medical history. J.B. did not otherwise associate the Veteran's diabetes mellitus, type 2, with the Veteran's active service. The Board notes the Veteran's opinion that his active service caused ischemic heart disease and diabetes mellitus. Lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); however, providing an opinion on the etiology of his ischemic heart disease and diabetes falls outside the realm of common knowledge of a lay person, and the Veteran has not been shown to be competent to provide a nexus opinion. See Jandreau, 492 F.3d at 1377 n.4. The Board has considered whether a VA examination is warranted under VA's duty to assist the Veteran. 38 C.F.R. § 21.1032. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), an examination and medical nexus opinion is required for a service connection claim when there is evidence of current disability or persistent or recurrent symptoms of a disability, evidence establishing in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations, and an indication that the current disability may be related to an in-service event, injury, or disease; but insufficient evidence to decide the claim. In this case, the Board has made the factual determination that the Veteran was not exposed to herbicide agents during service. As the evidence does not establish an in-service event (exposure to herbicide agents), a VA examination is not warranted under McLendon. In light of the foregoing, service connection is not warranted on a direct basis and the claims must be denied. See Combee, 34 F.3d at 1042. In summary, the preponderance of the evidence of record indicates that the Veteran's diabetes and ischemic heart disease were not shown in service or for many years thereafter, and they are not related to the Veteran's active service. Accordingly, entitlement to service connection for diabetes and ischemic heart disease is denied. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.