Citation Nr: 21028280 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-45 122 DATE: May 10, 2021 ORDER Service connection for diabetes mellitus type 2 (DM) is denied. Service connection for ischemic heart disease (IHD) is denied. FINDINGS OF FACT 1. The Veteran had active duty from June 1971 to May 1985, including a period of service in Thailand during the Vietnam Era. 2. DM was not shown in service, did not have its onset within one year from separation from service, and it is not etiologically or causally related to service. 3. IHD, to include diagnoses of coronary artery disease (CAD), coronary artery bypass graft (CABG), and myocardial infarctions (MIs), was not shown in service, did not have its onset within one year from separation from service, and it is not etiologically or causally related to service. CONCLUSIONS OF LAW 1. DM was not incurred in service. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1116, 1131, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2020). 2. IHD was not incurred in service. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1116, 1131, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In March 2019, the Board reopened a previously denied claim of service connection for DM and denied the underlying claim. The Board also remanded the service connection for IHD for further development. The Veteran appealed the DM issue to the Veterans Claims Court. In August 2020, the Court vacated the Board's decision. As for the issue of IHD, the RO scheduled a VA examination as ordered, but denied the claim, substantially complying with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Both issues have now returned to the Board for adjudication. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975. As the Veteran did not service in Vietnam, this provision is not applicable. Nonetheless, VA has determined that special consideration of herbicide exposure on a factual or facts-found basis should be extended to veterans whose duties placed them on or near the perimeters of certain Royal Thai Air Force Bases (RTAFB) when he or she claims service connection for disability based on herbicide exposure. VA internal policy stipulates that consideration on these grounds is due for veterans that served with the U.S. Air Force or Army in Thailand during the Vietnam Era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang during the period from February 1961 to May 1975. Additional consideration is required as to whether a veteran's military occupational specialty (MOS) is such as to indicate the performance of duties on a base perimeter as a security policeman, security patrol dog handler, member of the security police squadron, or otherwise was in regular contact with the air base perimeter near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Tactical herbicides, described as herbicide agents in VA regulations, are distinguished from commercially available herbicides approved by the Armed Forces Pest Control Board for use in routine base maintenance and vegetation control measures during this time. Overall, VA has determined that there are no records to show that the same tactical herbicides used in Vietnam, such as Agent Orange, were used in Thailand, but that sporadic use of commercial herbicides occurred within fenced perimeters on Thai airbases. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran claims that DM and IHD were caused by exposure to Agent Orange that occurred while serving at U-Tapao Airbase in Thailand. His MOS was a vehicle dispatch operator. The performance report reflected that he was a vehicle operator/dispatcher. He operated and performed operator maintenance on all types of cargo and passenger carrying vehicles. Reported and corrected mechanical malfunctions as required and prepared and completed all forms related to motor vehicle operations. Another performance report reflected that the Veteran cleaned, serviced, and operated radio and non-radio equipped vehicles and towing tractors in direct support of the Wing's mission and performed operator maintenance on all assigned vehicles. The Veteran testified at the August 2018 Board hearing and in additional evidence submitted in November 2018 that he had to move and locate driver retrieval flight equipment, which in some cases was located outside of landing strips and near the perimeter. He also commented how he had to drive through the perimeter. The November 2018 evidence included maps on which he indicated areas in which he regularly worked. However, despite the Veteran's statements that he was near the perimeter on occasion, the evidence does not support frequent and regular service around the perimeter as anticipated by the regulation. While he has credibly described some service at the perimeter, it does not rise to the level of perimeter contact of those who actively and daily patrolled the perimeter, such as security policemen. The MOS used as examples were for veterans with daily service along the perimeter. If periodic service also qualified, to include leaving the through the perimeter of the base, it would apply to nearly every serviceman rather than those that had duties which necessitated extended periods of time working along the perimeter and thus potential contact with herbicide agents used along the fence line. To so find would essentially render the qualifiers meaningless. During the August 2018 Board hearing, the Veteran described servicing aircraft in secondary locations, which were outside the gate; however, passing through the perimeter gate to reach these locations is not equivalent to frequent service at and around the perimeter. He also described during the hearing that occasionally he had to retrieve power and flying equipment that was in the jungle. Again, while this would require him to leave the base, it is not service along or abutting the base perimeter. As stated above, the Veteran submitted maps of the U-Tapao Airbase and indicated where he had regular service. The areas were close to a buffer zone, indicated on the map in orange, but most do not appear to be close to the actual perimeter fence of the base. As such, exposure to Agent Orange from frequent service at the perimeter of U-Tapao Airbase is not supported by the evidence, and service connection on presumptive grounds for herbicide agent exposure is not warranted. As to service connection on a direct basis, the Veteran has a current diagnosis of DM, and thus the first element a current diagnosis is met. As to the second element of service connection an in-service incurrence service treatment records (STRs) include a March 1977 work-up for hematuria where it was noted that he had a family history of DM and the fasting blood sugar was 102. In a subsequent April 1977 treatment record, a physician concluded that hematuria had an undetermined etiology and DM was not diagnosed. Despite the reference to DM during a work-up for hematuria, DM was not diagnosed in service and the second element of service connection is not met. To the extent that the Veteran asserts a connection between service and his current diagnosis of DM, the record does not support an etiological connection between hematuria treated in service, or any other in-service incurrence, and DM. A review of the record shows that no medical professional has associated DM with any in-service incurrence. The Veteran has claimed DM was caused by herbicide agent exposure, but as this exposure has not been found, the elements that require the RO to schedule a VA examination have not been met. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (specifically, the lack of an indication that his disability may be associated with service). Thus, given the lack of supporting evidence, a medical nexus is not shown, and the medical evidence does not support the claim. Next, DM is a chronic disease under 38 C.F.R. § 3.309(a), and thus service connection on a presumptive basis based on chronicity/continuity will be considered. However, DM was not diagnosed during service, did not manifest to a compensable degree within a year following separation from service, and the Veteran has not complained of nor has medical evidence shown continuous symptoms of DM from separation until his eventual diagnosis. As such, the medical evidence does not support service connection as a chronic disease under 38 C.F.R. § 3.309(a). As to IHD, the first element of service connection a current disability is met, as a July 2019 VA examination documents diagnoses of CAD, CABG, and old MIs. As such, the first element of service connection is met. The second element an in-service incurrence is also met, as the STRs show treatment for chest or heart symptoms. Specifically, in October 1972, the Veteran complained that his chest felt tight but no cardiovascular disorder was diagnosed. In December 1976, he complained of chest pain, with potential mitral stenosis, but had a normal chest X-ray. The Veteran was treated for complaints of chest pain in September 1976, which began two to three weeks prior, and came and went usually after eating. He was diagnosed with muscle pain. He again complained of chest pain in an October 1980 note, but was diagnosed with a moderate strain. Nonetheless, as chest symptoms were records, the second element is met. However, the third element a medical nexus is not met, as no medical professional has connected his current disability to any event in service. A July 2019 VA examiner stated that it was less likely than not that his current disabilities were caused by service, because there was no evidence that the complaints of chest pain were heart related, and there was no evidence of treatment for the reported chest pain. Similarly, the examiner related that the diagnosis of mitral stenosis in 1980 was inconsistent with an echocardiogram taken in July 2019, which showed a normal mitral valve. The examiner continued that the CABG surgery was not related to service for the same reasons. There is medical nexus that rebuts this opinion, which is well-reasoned. As such, the third element is not met and service connection on a direct basis is not supported by the medical evidence. As with DM, IHD is a chronic disease under 38 C.F.R. § 3.309(a), and as such, service connection on a presumptive basis will be considered. First, the Veteran was not diagnosed with a chronic cardiovascular disorder. While he diagnosed with mitral stenosis, a subsequent echocardiogram and medical opinion weighs against a mitral valve disorder. The post-service evidence weighs against a finding of an in-service mitral value disorder. In addition, the medical evidence does not show that IHD manifested to a compensable degree in the year following separation from service. Rather, as the Veteran reported to the July 2019 VA examiner, heart symptoms began in 2011, many years after separation from service. A review of his VA and private medical records fails to show continuous heart symptoms from service until his eventual diagnosis. As such, the medical evidence does not support service connection on a presumptive basis. The Board has considered the Veteran's lay statements that that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan A. Evans, 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.