Citation Nr: 21028479 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 10-39 578 DATE: May 11, 2021 ORDER Service connection for diabetes mellitus type II (DMII), with complications of diabetic neuropathies and peripheral vascular disease with amputations of the right second toe and left lower leg below the knee (hereinafter DMII with complications), to include as secondary to herbicide agent exposure, is denied. Service connection for impotency, to include as secondary to herbicide agent exposure and DMII, is denied. Service connection for diabetic nephropathy, to include as secondary to herbicide agent exposure and DMII, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran was exposed to herbicide agents in Panama. 2. The preponderance of the evidence is against finding that the Veteran's DMII with complications, impotency, or diabetic nephropathy began during active service, within one year of separation from service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for DMII with complications, to include as secondary to herbicide agent exposure, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.07, 3.309. 2. The criteria for service connection for impotency, to include as secondary to herbicide agent exposure and DMII, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.07, 3.309, 3.310. 3. The criteria for service connection for diabetic nephropathy, to include as secondary to herbicide agent exposure and DMII, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.07, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1962 to April 1965 in the U.S. Army. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran requested a Video Conference hearing; however, the request was withdrawn in October 2012. This matter was previously before the Board in July 2013, at which time the issues on appeal were remanded for further development. This case has now returned to the Board for appellate consideration. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 Additionally, service connection may be granted on a presumptive basis for certain diseases associated with exposure to herbicide agents, to include DMII. Exposure to herbicides is presumed for veterans who served in the Republic of Vietnam (RVN) during the Vietnam Era or who served between September 1, 1967, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during this period. See 38 U.S.C. § 1116, 1116B; 38 C.F.R. § 3.307(a)(6), 3.309(e). Claimants who are not entitled to a presumption of exposure to herbicides may establish herbicide exposure through the submission of probative evidence. See Gray v. McDonald, 27 Vet. App. 313 (2015). DMII with Complications, Impotency, and Diabetic Nephropathy The Veteran contends that his diagnosed DMII with complications, impotency, and diabetic nephropathy are related to exposure to herbicide agents while serving in the Panama Canal Zone. Additionally, the Veteran contends that his diagnosed impotency and diabetic nephropathy are related to his DMII. The Board finds that service connection for DMII with complications, impotency, and diabetic nephropathy, as a result of herbicide agent exposure, is not warranted because the record lacks competent and credible evidence of actual exposure. The Veteran's military personnel records show that he served in Panama from September 1962 to April 1965 as a cannoneer and a gunner. See Military Personnel Records received June 2015. The Veteran stated that his duties, including as a driver, battery operator during field condition, and guard duties, placed him around 55-gallon drums of hazardous material stored in a warehouse beside the ammunition storage. See May 2009 Form 9. The Veteran further stated that he was stationed at Fort Davis in the Panama Canal Zone from 1963 to 1965 and his duties required him to drive from Fort Davis to Fort Sherman, Fort Clayton, and Pena Beach. See May 2009 Statement in Support of Claim. The Veteran also stated that the jungle was sprayed with Agent Orange and cited to several articles that he submitted as evidence. Id. The articles submitted by the Veteran stated that Agent Orange was used in Panama in the mid to late 1960s and early 1970s. See June 2009 Correspondence. Additionally, the articles stated that in the 1960s and 1970s, Agent Orange was sprayed by planes in Panama near a popular beach, a recreation center, a sporting club, and a lake that supplied Panama City's drinking water. See March and June 2009 Correspondence. Additionally, one article stated that the Panamanian government asserted that the U.S. tested anti-crop agents in the early 1960s. See August 2009 Correspondence. The Veteran also submitted an article that stated at least nine witnesses confirmed that the military sprayed heavily with Agent Orange in an area of Fort Sherman known as the "drop zone" in the late 1960s and early 1970s. See June 2009 Correspondence. The Veteran asserts that he was exposed to herbicide agents at Fort Sherman near firing sites ("drop zones"), which were in the jungle, and he sometimes had to drive through the jungle to get to his destination. See May 2009 Statement in Support of Claim. In an October 2012 Third Party Correspondence, the Veteran's representative asserted that internet information showed that the United States Navy's Schuyler Otis Bland Logbook reported that classified cargo labeled "agricultural products" was sent under armed guard to Vietnam, Okinawa, and Panama in the spring of 1962. The documented cargo allegedly included Agents Pink and Purple, now believed to be biological and chemical agents. Therefore, the Veteran's representative contends that Agent Orange was shipped to Panama while the Veteran was in Panama. The Veteran also referenced a February 2009 Board decision that awarded VA benefits to a surviving spouse based on exposure to herbicide agents while serving in Panama. See May 2009 Statement in Support of Claim. The Board decision cited to testimony at a Board hearing from the former head of the Agent Orange Litigation Project, Charles Bartlett, who stated that hundreds of barrels of Agent Orange had been shipped to Panama in the mid-1960s for tests, and remained in Panama for use in controlling weeds. See June 2009 Correspondence. The Veteran also cited to a November 2016 Board decision that granted service connection for DMII based on exposure to herbicide agents in Panama. See January 2020 Report of General Information. Several requests to Compensation and Pension (C&P) Service and the U.S. Army and Joint Services Records Research Center (JSRRC) have been made throughout the appeal period to determine whether herbicide agents were used in Panama. In December 2008, C&P Service stated that the DoD list does not show any use, testing, or storage of tactical herbicides, such as Agent Orange, at any location in Panama, or any other association between herbicide use and Panama. In February 2009, the JSRRC responded that the Veteran's unit, the 4th Missile Battalion, HAWK-AW, 517th Artillery, was stationed at Fort Clayton in the Panama Canal Zone. However, the unit history did not mention any herbicide testing, spraying, transporting, storage, or usage of Agent Orange at Fort Clayton. Additionally, the DoD listing of herbicide agents used outside of Vietnam did not include Fort Clayton in Panama. Therefore, the JSRRC was unable to verify that the Veteran was exposed to herbicides while in the Panama Canal Zone from September 1962 to April 1965. In January 2016, C&P Service stated that the DoD list does not show any use, testing, or storage of tactical herbicides at any area in the Panama Canal Zone. Additionally, C&P Service stated that a December 2012 extensive search of historical records revealed no evidence that Agent Orange was ever shipped to, buried, or used anywhere in the Panama Canal Zone. Therefore, C&P could provide no evidence to support the claim and stated that the claim should be referred to the JSRRC. In March 2016, the JSRRC stated that they coordinated their research with the National Archives and Records Administration (NARA) in College Park, Maryland. However, they were unable to locate 1962 unit history of the Veteran's unit. They researched the U.S. Army historical documentation available to their office, however the records do not document spraying, testing, transporting, storage, or usage of herbicides, to include Agent Orange, at Fort Davis, Fort Sherman, Fort Clayton, or the Panama Canal Zone during the period from 1962 to 1965. Therefore, the JSRRC was unable to verify or document that the Veteran was exposed to Agent Orange or other tactical herbicides. In October 2018, a follow up request was sent to the JSRRC to address the Veteran's assertions in which he references the U.S. Navy Schuyler Otis Bland Logbook and its report that classified cargo labeled "agricultural products" was sent under armed guard to Vietnam, Okinawa, and Panama in the spring of 1962. In January 2019, the JSRRC stated that the Schuler Otis Bland Deck Logs for October to November 1962 do not document any cargo listed as Agents Pink or Purple believed to be biological or chemical agents. An Administrative Decision was issued in February 2021, which concluded that the evidence does not show that the Veteran was exposed to herbicide agents while serving in the Panama Canal Zone from September 1962 to April 1965. The Administrative Decision stated that the DoD recently completed an extensive review of its documentation concerning the use, testing, storage, and transportation of Agent Orange and other tactical herbicides outside of Vietnam and Korea in 2019; however, no evidence of Agent Orange or other tactical herbicides in Panama, to include the Canal Zone, was found. The Administrative Decision also stated that there is no evidence to support that the Schuyler Otis Brand, a cargo vessel part of the Military Sealift Command, carried tactical herbicides to Panama. The Administrative Decision stated that the cargo ships generally provided only force protection or communication assets to the Military Sealift Command and DoD's review of inventory of herbicide-related documents revealed no evidence demonstrating the presence of Agent Orange or any other tactical herbicide in Panama. The February 2021 Administrative Decision also stated that commercial herbicides were used in Panama, to include the Canal Zone, for standard vegetation and weed control. Additionally, herbicide chemical components, such as 2,4-D and 2,4,5-T have been found in the Panama Canal Zone; however, this would be expected as these were components of commercial herbicides that were used for regular vegetation control at that time. The February 2021 Administrative Decision concluded that there is no evidence that Agent Orange or other tactical herbicides were used, tested, stored, or transported in Panama, to include the Canal Zone from September 1962 to April 1965. Although the Veteran submitted evidence suggesting that Agent Orange was present in Panama in the 1960s and 1970s, the Board finds that there is no competent or credible evidence of record that supports the finding that the Veteran was actually exposed to herbicide agents while serving in Panama from September 1962 to April 1965. While the Veteran believes he was exposed to herbicide agents, he is not competent to make that assessment. The issue is medically complex, as it requires specialized knowledge and/or training to specifically identify whether a particular substance is an herbicide agent. Moreover, the Board finds that the most probative competent and credible evidence of record, to include responses from C&P Service and the JSRRC, and the February 2021 Administrative Decision, shows that the Veteran was not exposed to herbicide agents during service. Regarding the Board decisions submitted and cited by the Veteran, the Board notes that prior Board decisions are not precedential and a decision as to one appellant has no precedential weight with regard to the decision for a different appellant. 38 C.F.R. § 20.1303. Board decisions must be made based on the particular facts and applicable legal authority specific to the case before the Board. Id. As discussed, the Board has determined that the competent, probative evidence in this case does not demonstrate that the Veteran was exposed to herbicide agents. The Board has considered whether the Veteran's DMII with complications, impotency, and diabetic nephropathy, are otherwise related to service. However, the Veteran's service treatment records (STRs) are silent as to any complaints, treatment, or diagnosis of DMII with complications, impotency, and diabetic nephropathy. Moreover, the Veteran's medical records show that he was diagnosed with DMII around 1998. See Medical Treatment Record received February 2008. Accordingly, the evidence does not show that the Veteran's DMII with complications, impotency, and diabetic nephropathy had its onset during service, or within one year following separation from service. Additionally, to the extent that the Veteran is claiming service connection for impotency and diabetic nephropathy as secondary to DMII, as decided herein, service connection for DMII is denied; therefore, service connection for impotency and diabetic nephropathy as secondary to DMII is not possible. Based on the foregoing, the Board finds that the second element of service connection, an in-service incurrence, has not been established. Accordingly, the preponderance of the evidence is against the Veteran's claims for service connection for DMII with complications, impotency, and diabetic nephropathy, on a direct basis. Additionally, service connection for diabetic nephropathy and impotency as secondary to DMII is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable, and the claims are denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; 3.310. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kernen, 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.