Citation Nr: 21027713 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-44 484 DATE: May 6, 2021 ORDER Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to type II diabetes mellitus, is denied. Entitlement to service connection for an eye disorder, to include as secondary to type II diabetes mellitus, is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam, and he otherwise has not been shown to have been exposed herbicide agents in service. 2. The Veteran's diagnosed type II diabetes mellitus did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran's active duty service. 3. Because the Veteran is not service connected for type II diabetes mellitus, service connection for bilateral lower extremity peripheral neuropathy and an eye disorder, claimed as secondary to type II diabetes mellitus, cannot be established. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for type II diabetes mellitus have not been 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 bilateral upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for an eye disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to October 1972, with additional service in the Air Force Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, these matters were previously before the Board in July 2019, when they were remanded for additional development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain diseases may be presumed to have been incurred in service where a veteran was exposed to an herbicide agent, such as Agent Orange, while serving on active duty, even when there is no evidence of such exposure during the period of service. Diabetes mellitus type 2 has been identified on the list of diseases presumed to be due to herbicide agent exposure. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicide agents may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure, is denied. The Veteran states that his diagnosed diabetes mellitus was caused by exposure to herbicide agents, to include Agent Orange, during his active duty service. The Veteran does not allege, and the evidence does not show, that he served in Vietnam as defined under 38 C.F.R. § 3.307(a)(6)(iii). See January 2012 VA Form 21-526b, Veteran Supplemental Claim. During his January 2019 Board hearing, the Veteran testified that he was exposed to herbicide agents, to include Agent Orange, while he was stationed Udorn Royal Thai Air Force Base (RTAFB) in Thailand. Specifically, the Veteran reported that he worked as an aircraft mechanic in an open hanger, which was located in close proximity to the base perimeter, and indicated that he had to drive along the base perimeter approximately three to five times per day to travel between his work station, the chow hall, and his barracks. The Veteran further testified that his barracks were directly adjacent to the perimeter, and although he did not recall seeing anyone spraying herbicide agents, he saw the aftereffects thereof. See January 2019 Hearing Transcript, pages 2-6; see also February 2013 VA Form 21-4138 Statement in Support of Claim. In support of his claim, the Veteran submitted a map of Udorn RTAFB and multiple photographs, including a photograph depicting his barracks, an adjacent fence, and a building with multiple cars in the background. The photograph also shows an area with some small bushes that is otherwise devoid of vegetation. During the January 2019 hearing, the Veteran explained that the fence outside of his barracks marked the base perimeter and noted that the building in the background and defoliated area were outside the base. See January 2013 Photographs; January 2019 Hearing Transcript, pages 5-9. Alternatively, the Veteran reported that he may have been exposed to herbicide agents while working in proximity to C-123 aircraft that had been used to spray herbicide agents in the Republic of Vietnam. To this end, the Veteran reported that, although he worked on T-28 aircraft, his primary duties were conducted in open bay hangers that shared a flight line with Air America and serviced C-123 aircraft. He further reported that the landing gear and sub-assemblies of the aircraft he serviced contained dirt, mud, oil, grease, film, and chemical contaminates, to include herbicide agents, which would seep through his skin throughout his 10 to 12 hour shifts. See February 2013 VA Form 21-4138 Statement in Support of Claim. In support of his claim, the Veteran submitted a photo, which he stated showed Air America personnel and a C-123 aircraft, and referenced three prior Board decisions that granted service connection for diseases caused by herbicide agent exposure at Udorn RTAFB, as well as a May 2010 compensation and pension service bulletin. See Id.; August 2016 Photographs. The Veteran also submitted a letter from another airman, T. Cross, dated in March 2017. Cross stated that he and the Veteran worked on T-28 aircraft in the Air America Compound, which was located in close proximity to the base perimeter. Cross also affirmed that he and the Veteran had to drive along the base perimeter to move between their workstations and barracks. See October 2019 Buddy/Lay Statement. A review of the Veteran's service personnel records (SPRs) confirms that he was assigned to Detachment One, 56th Special Operations Wing at Udorn RTAFB in Thailand from April 1970 to April 1971. In addition, an airman performance report for the period from September 1970 to March 1971 confirms that the Veteran was an aircraft mechanic, reciprocating engine type, assigned as a crew member to the T-28 phase docks at Udorn RTAFB. In addition, the Veteran's DD-214 and SPRs show that his Air Force Specialty Codes (AFSCs) included aircraft mechanic and apprentice aircraft maintenance specialist. See December 2015 Military Personnel Record; November 1979 Certificate of Release or Discharge From Active Duty (e.g. DD 214, NOAA 56-16, PHS 1867). A November 2015 agent orange program note shows that the Veteran was stationed in the Republic of Vietnam from 1970 to 1971. The examiner noted that the Veteran had been diagnosed with diabetes mellitus in 1999 and reported that the Veteran was in an area recently sprayed with Agent Orange; however, the examiner reported that the Veteran was not involved in the handling or spraying of Agent Orange and that he was not directly sprayed with Agent Orange, but was not sure whether the Veteran ate or drank food that could have been sprayed with Agent Orange. However, the examiner did not find that the Veteran had any conditions probably related to Agent Orange exposure. See June 2016 CAPRI. After a review of the evidence of record, the Board finds that service connection for diabetes mellitus, to include as due to herbicide agent exposure, is not warranted. Initially, the Board notes that the Veteran has not argued, and the evidence does not show, that the Veteran's diagnosed diabetes mellitus began in service or proximately thereafter. In this regard, the Veteran's service treatment records (STRs) are absent for findings or diagnoses of diabetes mellitus, and the Veteran was initially diagnosed with diabetes mellitus approximately 26 years post-service. The Veteran's (STRs) are silent for any findings or diagnoses related to diabetes mellitus. The Veteran did report recent weight gain or loss on the August 1972 separation report of medical history, and the examiner noted that the Veteran gained approximately 25 lbs in the preceding year due to dietary intake. The examiner further noted that the Veteran denied a family history of diabetes mellitus during the examination. See October 2014 STR Medical. A review of the Veteran's post-service treatment records shows that he was diagnosed with diabetes mellitus in or around 1998 or 1999. Specifically, VA treatment records show that the Veteran was diagnosed with diabetes mellitus in or around 1998 or 1999. See June 2016 CAPRI. Moreover, the Board finds that presumptive service connection is also not warranted for the Veteran's diabetes mellitus because the disorder was not diagnosed in-service or within one-year following active duty service. The Board has considered the Veteran's assertion that his diagnosed diabetes mellitus was caused by herbicide exposure during active duty service. To this end, the Veteran reported that he was exposed to Agent Orange while he was stationed at Udorn RTAFB in Thailand and, in the alternative, that he may have been exposed to herbicide agents while working in proximity to C-123 aircraft used to spray herbicide agents in the Republic of Vietnam. See January 2019 Hearing Transcript, pages 2-6; February 2013 VA Form 21-4138 Statement in Support of Claim. VA's Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Air Force veterans whose duties placed them on or near the perimeters of certain RTAFBs, to include U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. Herbicide exposure may be conceded on a facts-found basis if a veteran served on one of the listed RTAFBs during the Vietnam Era if the veteran served as a security policeman, security dog handler, member of the security police squadron, or otherwise served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. VA's Compensation and Pension Service reviewed a declassified Vietnam era Department of Defense document titled Project CHECO Southwest Asia Report: Base Defense in Thailand, which indicated herbicides were used for vegetation control on the fenced in perimeters of military bases in Thailand to eliminate vegetation and ground cover for base security purposes. The basis for the Veterans Benefits Administration loosening the standards and finding herbicide exposure in these cases is that veterans who regularly had contact with certain base perimeters had a greater likelihood of exposure to commercial pesticides, including herbicides, according to the CHECO report. Therefore, if regular contact with the perimeter creates a greater likelihood of exposure then the opposite would be true as well, meaning that little or infrequent contact decreases the likelihood of exposure. The simple fact that a veteran served at a RTAFB where herbicides were used does not automatically entitle him or her to service connection. In providing for service connection based on herbicide exposure in Thailand, VA specifically did not extend any presumption to all service members who served there (e.g. traveled through the gates to enter the base, or worked in view of the perimeter), but instead found that exposure could be conceded on a facts found basis. Although the term "near" is not defined, the Board finds that it is meant to convey duties which would require regular, routine, extensive, frequent, or prolonged, presence on the edge of the base where spraying was used to control vegetation, as suggested by the "evidence of daily work duties." This meaning is also consistent with the examples of MOS provided (security policeman, security dog handler, member of the security police squadron), who job duties all involve regular, prolonged periods of patrolling the perimeter, and, consequently near areas where commercial herbicides may have been used. In the present case, the Veteran was not a security policeman, security dog handler, or member of a security police squadron whose duties involved service near a base perimeter. Rather, the Veteran's SPRs show that he was assigned to the 56th Special Operations Wing Detachment One at Udorn RTAFB from April 1970 to April 1971. In addition, the Veteran's DD-214 and SPRs show that his AFSCs included aircraft mechanic and apprentice aircraft maintenance specialist. See November 1979 Certificate of Release or Discharge from Active Duty (e.g. DD 214, NOAA 56-16, PHS 1867); January 2013 Military Personnel Record; December 2015 Military Personnel Record. However, there is no indication that these duties required regular, routine, extensive, frequent or prolonged presence on the base perimeter, similar to that which would be required for a security policeman, security dog handler, or member of a security police squadron. The Board has also considered the Veteran's report that he may have been exposed to herbicide agents, to include Agent Orange, while traveling between his workstation, barracks, and the chow hall. In this regard, the Veteran reported that he had to travel along the base perimeter approximately three to five times per day and indicated that his barracks was directly adjacent to the base perimeter. See January 2019 Hearing Transcript, pages 2-6; see also February 2013 VA Form 21-4138 Statement in Support of Claim. In this regard, the Board has considered the lay evidence submitted by the Veteran, to include a map of Udorn RTAFB and photographs that show a fence adjacent to the Veteran's barracks; however, the Board finds that the evidence of record does not substantiate exposure to herbicides. The Board finds that the evidence does not show that the Veteran's duties as an aircraft mechanic and apprentice aircraft maintenance specialist, to include transportation to and from his work station, required regular, routine, extensive, frequent, or prolonged presence on the edge of the base as suggested by "evidence of daily work duties." Moreover, while the Veteran may have been on the perimeter road and may have lived adjacent to the perimeter fence, the Board does not consider this equivalent to duties on or near the perimeter. On a road and in his barracks, the Veteran would not be exposed to any vegetation or herbicides, as a road and barracks would have replaced the vegetation. The Board has also considered the Veteran's report that he may have been exposed to herbicide agents while working in proximity to C-123 aircraft used to spray herbicide agents in the Republic of Vietnam, as well as additional lay evidence, to include photographs and the letter from T. Cross. See February 2013 VA Form 21-4138 Statement in Support of Claim; August 2016 Photographs; October 2019 Buddy/Lay Statement. VA established a presumption of exposure for individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with (regularly and repeatedly operated, maintained, or served onboard) C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era and later develop an Agent Orange presumptive condition. See 38 C.F.R. § 3.307(a)(6)(v). For purposes of this paragraph, "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircrafts and the individual had an AFSC indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Id. In this regard, research completed by the Air Force Historical Research Agency found that four former Operation RANCH HAND (ORH) C-123 aircraft were transferred from ORH to the 56th Special Operations Wing's CANDLESTICK Operation, but noted that the transferred planes did not spray any herbicides or insecticides at their home base, Nakhon Phanom RTAFB. Further, the Air Force Historical Research Agency also found that these aircraft were not associated with the Veteran's unit, Detachment One of the 56th Special Operations Wing, and it determined that there was no documentation that any of the aircrafts visited Udorn RTAFB. Thus, although the evidence shows that the Veteran's unit worked with T-28B, T-28C, T-28D, RT-28, and C-47 aircraft, it does not show that the Veteran's unit worked with C-123 aircraft, and the objective evidence does not show that the Veteran was assigned to a squadron where ORH C-123 aircraft were conducting operations. See November 2019 Correspondence; November 2020 Other. Moreover, even assuming without deciding that C-123 aircraft were present at Udorn RTAFB, the evidence of record does not show that the Veteran had regular and repeated duties flying on or maintaining contaminated ORH C-123 aircraft or that he was assigned to a squadron where ORH C-123 aircraft were conducting operations. See November 2019 Correspondence; January 2021 SSOC. Thus, while the Board acknowledges the Veteran's assertions regarding exposure to herbicides from C-123 aircraft at Udorn RTAFB, the Board finds that the Veteran's SPRs and the November 2019 research completed by the Air Force Historical Research Agency are more probative and persuasive of the circumstances of the Veteran's active service. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Board further notes that the Veteran referenced three prior Board decisions that granted service connection for diseases caused by herbicide agent exposure at Udorn RTAFB, as well as a May 2010 compensation and pension service bulletin. See February 2013 VA Form 21-4138 Statement in Support of Claim. However, the Veteran did not submit any of the referenced Board decisions. In any event, Board decisions are not precedential and are not binding on the Board for other cases. See 38 C.F.R. § 20.1303; McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). Accordingly, this evidence is not specific to the Veteran's case, and is of little probative value. Conversely, for the reasons stated above, the Board finds the evidence gathered by the official government sources referenced above to be more probative. The Board has considered the November 2015 agent orange program note, wherein the examiner found that the Veteran served in the Republic of Vietnam from 1970 to 1971, noted that the Veteran was in an area recently sprayed with Agent Orange, and indicated that they were not sure whether the Veteran ate or drank food that could have been sprayed with Agent Orange. As such, the examiner further found that the Veteran's diagnosed diabetes mellitus was possibly associated with exposure to Agent Orange during his active duty service. See June 2016 CAPRI. However, the Board finds that, although the Veteran served in Thailand, there is no evidence to suggest that he was stationed in the Republic of Vietnam. Moreover, to the extent that the examiner found that the Veteran's diagnosed diabetes mellitus was possibly associated with herbicide agent exposure, such was predicated on a finding that the Veteran was exposed to herbicide agents during active duty service. However, as the Board found that herbicide agent exposure is not shown in this case, the Board finds that the November 2015 VA examiner's opinion lacks probative value. See Reonal v. Brown, 5 Vet. 458, 461 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Thus, Board finds that the Veteran's assertion, without more, simply does not support the claim that he was, in fact, actually exposed to herbicides in service. In light of the above, the Board finds that the Veteran was not exposed to herbicide agents, to include Agent Orange, during service. The Board further acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for diabetes mellitus; however, the Board finds no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran's active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, VA is obligated to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. For the reasons stated above, the Board finds that there is no competent evidence showing that the Veteran was exposed to herbicide agents, to include Agent Orange, during service, or indicating that his diagnosed diabetes mellitus manifested in service, within a year of his discharge from active duty service, may be related to service. As such, the Board finds a VA medical opinion is not necessary to decide the Veteran's claim of entitlement to service connection for diabetes mellitus. Accordingly, the Board finds that the second and third Shedden requirements have not been met. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim or service connection for diabetes mellitus. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). 2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to type II diabetes mellitus, is denied. 3. Entitlement to service connection for an eye disorder, to include as secondary to type II diabetes mellitus, is denied. The Veteran states that his diagnosed bilateral lower extremity peripheral neuropathy and eye disorder were caused by his diabetes mellitus. See October 2012 VA Form 21-4138 Statement in Support of Claim. Having carefully reviewed the evidence of record, the Board finds that the criteria for service connection for bilateral lower extremity peripheral neuropathy and an eye disorder have not been met. The Board notes that service connection on a secondary basis may be established for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in the severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of a nonservice-connected condition. 38 C.F.R. § 3.310(a), (b). In this regard, establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In the present case, the Veteran is not service connected for diabetes mellitus, and as a result, a secondary theory of entitlement may not be considered as a matter of law. In this regard, the Board acknowledges that the Veteran has not been afforded a VA examination regarding his claimed bilateral lower extremity peripheral neuropathy and eye disorder. However, no VA examination is necessary to satisfy the duty to assist in this case. The Veteran has only alleged that his bilateral lower extremity peripheral neuropathy and eye disorder are related to his diabetes mellitus, which is not service connected. To this end, the Veteran has not averred, and his service treatment records do not indicate, any other in-service event or injury that may be associated with his current disability. Thus, as there is no in-service event or incident with which to associate the Veteran's claimed disability, no VA examination is necessary. In summary, the preponderance of the evidence weighs against a finding that the Veteran's bilateral lower extremity peripheral neuropathy and eye disorder are secondary to a service-connected disability or are causally related to any other in-service event or injury. Therefore, the benefit-of-the-doubt doctrine does not apply, and service connection is not warranted. The claims are denied. See Gilbert, 1 Vet. App. 49. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.