Citation Nr: 21028138 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-60 944 DATE: May 10, 2021 ORDER Entitlement to service connection for peripheral neuropathy, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The preponderance of the evidence fails to demonstrate that the Veteran served in the Republic of Vietnam or that he was exposed to herbicide agents in the course of his service in Thailand or at Fort Drum, New York. 2. The preponderance of the evidence is against a finding that the Veteran's diagnosed peripheral neuropathy was caused by or incurred in service. 3. The preponderance of the evidence is against a finding that the Veteran's diagnosed ischemic heart disease was caused by or incurred in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy, to include as due to exposure to herbicide agents have not been met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicide agents have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training (ACDUTRA) in the United States Army from January 1967 to May 1967 and served on active duty from August 1970 to February 1972. The Veteran had additional service in the National Guard. This case comes on appeal of an October 2015 rating decision. These matters have previously been before the Board in August 2018 and October 2020. At those times, the Board remanded the case for additional development. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. 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 present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Under 38 C.F.R. § 3.309(e), a presumption of service connection arises for a Vietnam Veteran (presumed exposed to an herbicide agent) who develops one of several enumerated conditions associated with herbicide agent exposure, to include ischemic heart disease and early-onset peripheral neuropathy. The enumerated diseases shall be service connected, even if there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Here, the Veteran has asserted that, although his service did not take place in the Republic of Vietnam, he had a five-hour stopover in Vietnam in September 1970 while en route to service in Thailand. Military personnel records show that the Veteran was ordered to Thailand as part of the 505th Transportation Company and was transferred to the 519th Transportation Battalion. As part of the development ordered by the Board's prior remand, the agency of original jurisdiction (AOJ) requested assistance from the Joint Services Records Research Center (JSRRC) in determining whether there was evidence of the Veteran's presence on the ground in Vietnam. In August 2019, the AOJ received a response stating that records submitted by the 519th Transportation Battalion do not document him stopping in Vietnam while en route to Thailand. In the absence of any records documenting his presence on the ground in Vietnam, the Board cannot presume the Veteran to have been exposed to herbicide agents on that basis. The Veteran has also asserted that he should be presumed exposed to herbicide agents as a result of his service in Thailand. Military personnel records confirm that the Veteran was stationed in Thailand from September 1970 to January 1971. Specifically, the Veteran was based in Sattahip and was involved in the deactivation of Camp Samae San. VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. VA concedes herbicide agent exposure for veterans who served in Thailand during the Vietnam era at certain Royal Thai Air Force Bases (RTAFB) if they served as security policemen, security patrol dog handlers, members of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. The rationale behind this concession is that those military occupational specialties (MOS) involved prolonged exposure to the areas that may have been defoliated with tactical herbicides. Notably, Camp Samae San is not among the bases at which VA concedes herbicide agent exposure. Likewise, the Veteran's MOS of wheeled vehicle mechanic is not among those considered to have involved a prolonged presence at the base perimeter. The Veteran has testified that his duties involved evaluating military vehicles for retrieval, and that this resulted in frequently going off base and spending time at the perimeter of U-Tapao RTAFB. U-Tapao is among the bases at which the United States military is presumed to have defoliated the perimeter using tactical herbicides. Nevertheless, there is no record of the Veteran's duties involving regular service on the perimeter of the base. In the absence of such records, the Board cannot concede exposure to herbicide agents. Finally, the Veteran has alleged that he was exposed to herbicide agents while training at Fort Drum, New York. Military records do show that herbicide agents were briefly used at Fort Drum in 1959. This was several years before the Veteran's National Guard service and ACDUTRA at Fort Drum. Unlike areas in which a Veteran is statutorily presumed to have been exposed to herbicide agents, in cases such as this one, the evidence must specifically demonstrate that the Veteran was exposed. It is not enough simply to demonstrate that the Veteran was present at a place where herbicide agents were used. Rather, the evidence must show that it is at least as likely as not that the Veteran was exposed during his service. Therefore, even if the Board were to concede that herbicide agents were in use during the Veteran's service at each respective base, that by itself would not be enough to concede the Veteran's individual exposure. Here, the preponderance of the evidence is against a finding that herbicide agents were in use during the Veteran's service at Fort Drum. Moreover, the Veteran has not presented any evidence to demonstrate his specific exposure to herbicide agents while serving there. Therefore, because actual exposure at Fort Drum is not shown by the record, there is no competent evidence of an in-service injury there. Thus, the Veteran's locations of service and service duties do not support a finding that he was presumptively exposed to herbicide agents. Accordingly, service connection on a presumptive basis is not warranted. However, the Board must still address entitlement to service connection on a direct basis and does so below. 1. Entitlement to service connection for peripheral neuropathy The record demonstrates that the Veteran was diagnosed with peripheral neuropathy in 1994. In an October 2015 VA examination, the Veteran reported observing the onset of neuropathy symptoms in approximately 1974. At the time of that examination, the examiner noted a July 2015 EMG study demonstrating neuropathy in the bilateral upper and lower extremities. The examiner opined that it was at least as likely as not that peripheral neuropathy was etiologically related to the Veteran's herbicide agent exposure. However, this causal link was based on the Veteran's own assertion of herbicide agent exposure and not on any information in the record. The examiner did not state that the Veteran's specific disabilities were indicative of herbicide agent exposure on their own. In its October 2020 remand, the Board observed that service treatment records from October 1968 contained complaints of unspecified foot trouble. In light of potential evidence of in-service injury or onset, the Board remanded the claim to obtain a medical opinion regarding service connection on a direct basis. In January 2021 the AOJ obtained such an opinion. At that time, the examiner opined that it was less likely than not that the Veteran's diagnosed neuropathy was related to the non-specific foot trouble during service. By way of rationale, the examiner explained that there was no medical literature that would provide a clinical nexus between non-specific foot pain and neuropathy given the Veteran's clinical records. The Board further notes that the Veteran's separation examination showed a normal clinical evaluation. Regarding complaints of foot trouble, a January 1972 report of medical history showed that the Veteran had three ingrown toenails removed at age 17, but there were no other complaints indicated. There is no other evidence to support a causal link between any in-service injury or event and the Veteran's currently diagnosed peripheral neuropathy. Thus, the preponderance of the evidence is against a finding that peripheral neuropathy was caused by or incurred in service. As the preponderance of the evidence is against this finding, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for ischemic heart disease Private treatment records demonstrate the Veteran was diagnosed with coronary artery disease in 2005. Coronary artery disease meets the definition of ischemic heart disease for the purposes of VA evaluation. The Veteran underwent a VA heart conditions examination in October 2015. At that time, the examiner diagnosed coronary artery disease, as well as ventricular arrhythmia and supraventricular arrhythmia. The examiner opined that coronary artery disease was caused by exposure to herbicide agents. However, this causal link was based on the Veteran's own assertion of herbicide agent exposure and not on any information in the record. The examiner did not state that the Veteran's specific disabilities were indicative of herbicide agent exposure on their own. The examiner also opined that the arrhythmias were caused by coronary artery disease. In its October 2020 decision, the Board observed that service treatment records from October 1968 contained complaints of pain or pressure in his chest. In light of potential evidence of in-service injury or onset, the Board remanded the claim to obtain a medical opinion regarding service connection on a direct basis. In January 2021 the AOJ obtained such an opinion. At that time, the examiner opined that the Veteran's current coronary artery disease was less likely than not related to the complaint of chest pain in 1968. By way of rationale, the examiner explained that there was nothing in medical literature to support a causal nexus between a solitary complaint of chest pain and a diagnosis of coronary artery disease decades later. The Board acknowledges that the examiner also stated that, according to previous examinations, the Veteran's heart condition was presumptively linked to herbicide agent exposure. Once again, this was based solely on the Veteran's self-reporting to the October 2015 examiner and was not an actual finding of exposure. Moreover, the Board finds that by simply acknowledging the prior alternative etiology, the January 2021 examiner did not in any way detract from their reasoning for a negative nexus between the October 1968 chest pain and current coronary artery disease. The Board also notes that the Veteran's separation examination showed no indication of any chest pain or heart condition and there is no suggestion of chronicity prior to the Veteran's eventual coronary artery disease diagnosis in 2005. There is no other evidence to support a causal relationship between the current disability and service. Accordingly, the preponderance of the evidence is against a finding that ischemic heart disease was caused by or incurred in service. As the preponderance of the evidence is against this finding, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert, supra. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.