Citation Nr: 22010560 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 16-11 561 DATE: February 24, 2022 ORDER Entitlement to service connection for coronary artery disease, status post myocardial infarction, due to herbicide exposure is denied. Entitlement to service connection for type II diabetes mellitus, due to herbicide exposure is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran was not exposed to herbicides in service. 2. A heart disability, to include CAD, manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service injury or disease. 3. Type II diabetes mellitus manifested more than one year after separation and is not shown to be causally related to an in-service injury or disease. 4. Throughout the entire period on appeal, the Veteran does not meet the criteria for a schedular TDIU and his service-connected disabilities are not shown to have rendered him incapable of substantially gainful employment during this period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for coronary artery disease, status post myocardial infarction, due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for type II diabetes mellitus, due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Air Force from June 1971 to June 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript is of record. The Board remanded the claims May 2019 and February 2021 for further development. As the actions specified in the most recent remand have been substantially completed, these matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duty to Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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 or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as diabetes mellitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Pertinent law further provides that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). VA has also determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Thailand military bases during the Vietnam era. As such, herbicide exposure should be conceded on a facts found or direct basis if a veteran served in the Air Force in Thailand during the Vietnam era at one of the listed bases, including the Korat Royal Thai Air Force Base (RTAFB), as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence. Furthermore, VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents. Those diseases that are listed at 38 C.F.R. § 3.309(e), including ischemic heart disease and diabetes mellitus, type II, shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). When all the evidence is assembled, VA is responsible for determining whether the weight of the evidence is in approximate balance. If the positive and negative evidence is evenly or approximately balanced, the claimant receives the benefit of the doubt. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 1. Entitlement to service connection for coronary artery disease (CAD), status post myocardial infarction, due to herbicide exposure 2. Entitlement to service connection for type II diabetes mellitus, due to herbicide exposure The Veteran seeks service connection for diabetes mellitus and CAD, which he asserts are the result of in-service exposure to herbicides. Specifically, the Veteran contends that he was exposed to herbicides while on a temporary duty (TDY) to the Korat Royal Thai Air Force Base (RTAFB). Service personnel records and service treatment records (STRs) do not reflect that the Veteran served in Thailand. However, in several statements and during his Board hearing, the Veteran testified that he served on TDY in Thailand. The Veteran also asserts that he had a stopover in Vietnam. See October 2018 Board Hearing Transcript. Military personnel records show that the Veteran had foreign service in Taiwan from August 1972 to August 1973. No other foreign service is demonstrated. In addition, a performance report from this period makes no mention of any TDY, only noting the Veteran's location was Ching Chuan Kang AB, Taiwan. Concerning an in-service injury or disease, the Veteran has not alleged, and the evidence does not show, that the Veteran was diagnosed with coronary artery disease or diabetes mellitus in-service, or treated for any symptoms that are indicative of these diseases. The Veteran's June 1991 separation examination noted that his heart was normal and that his urinalysis was negative for albumin or sugar, and he denied any symptoms of either condition on the corresponding report of medical history. In a June 5, 2013 VA medical record the Veteran presented for an Agent Orange Special Registry examination. The Veteran reported that he did not have service in Vietnam; "No", and that he was "TDY to Korat AFB in Thailand" from March 1973 to July 1973. He also reported "no combat." At his October 2018 Board hearing, the Veteran testified that his coronary artery disease (CAD) and diabetes mellitus type II were caused by his claimed exposure to herbicides in Vietnam. Though not supported by the Veteran's service or personnel records, he testified that he left Taiwan in either late March or early April of 1973 and was gone 79 days. He was stationed at Korat Air Base, Thailand for 76 days. He testified that he was part of the ground crew of a C-130 Hercules and he maintained the aircraft on the runway. In February 2021, the Board remanded these matters for the RO to attempt to verify the Veteran's claimed service at the Korat Royal Thai Air Force Base during a period of temporary duty (TDY) in 1973. The RO was instructed to make efforts to verify where the Veteran's assigned unit was stationed during this timeframe, and to obtain pay records, TDY orders, flight manifests or unit records which may document the claimed service. Pursuant to the Board remand, the RO sent requests to the National Personnel Records Center in March and April 2021 for the Veteran's leave and earning statements, TDY Orders and Travel Vouchers. The RO informed the Veteran of its request and asked the Veteran to submit any relevant information in his possession. In November 2021, the NPRC determined that the Veteran's records for the period from February 1973 to June 1973, could not be found. A final notification letter was sent to the Veteran the same month. While the Veteran testified that he stopped over in Vietnam for two to three hours on his way to Thailand, initially during a June 2013 VA Agent Orange Registry examination, when asked if he had service in Vietnam, he responded "No," and never reported being in Vietnam, instead he only identified TDY to Korat AFB in Thailand. The VA Agent Orange Registry examination was designed to capture such information as to assist with the treatment of conditions since service. There is no reason to believe the Veteran was not accurately and comprehensively reporting his history at that time while seeking treatment. Statements made to medical providers for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Thus, the Board finds that the Veteran's report of not having service in Vietnam in June 2013 to medical professionals is more consistent with the circumstances of his service and the evidence found in his military personnel records. Accordingly, there is no credible evidence to support that the Veteran stepped foot in the Republic of Vietnam. As noted above his performance reports show that he was assigned to Ching Chuan Kang AB in Taiwan from August 1972 to August 1973. However, there are no records showing that the Veteran had TDY orders to Korat RTAFB. Therefore, after considering all of the evidence of record, the Board finds that the evidence weighs against a finding that the Veteran was exposed to herbicides at any time during his military service. The further Board notes that the Veteran's representative asserts that the Veteran's receipt of the Republic of Vietnam Cross of Gallantry with Palm is proof that the Veteran was in Vietnam as it was only awarded to military personnel of all nations who served in Vietnam. See January 2022 appellant brief. However, the Board disagrees. The Republic of Vietnam awarded the Vietnam Gallantry Cross with Palm to units for valorous combat achievements. See Manual of Military Decorations and Awards (Department of Defense Manual 1348.33-V3, November 2010). The circumstances under which the award of the Vietnam Gallantry Cross with Palm was made are not reflected in the record and service personnel records do not show assignment or duties that would have placed him in combat circumstances or service in Vietnam. This raises a question of whether the award of the Vietnam Gallantry Cross with Palm was made merely because he served in a unit that participated in combat or whether he individually participated in actions consistent with combat. As the record does not reflect that the Veteran served in Vietnam, the Board concludes that he was awarded the Vietnam Gallantry Cross with Palm because he served in a unit that had valorous combat achievements and not because the Veteran personally served in combat. As such, the Board concludes that the evidence does not show that the Veteran had service in Vietnam. It also does not show service under other circumstances that would allow presumption of exposure to herbicide agents. Therefore, the record does not show that exposure to herbicide agents may be presumed or that service connection for the cause of the Veteran's cause of death is warranted on a presumptive basis under 38 C.F.R. §§ 3.307 (a) (6) and 3.309 (e). Accordingly, the Board finds that the evidence does not show that the Veteran served in Vietnam or in Thailand; thus, the Veteran is not presumed to have been exposed to an herbicide agent. Therefore, in this case, presumptive service connection for coronary artery disease or diabetes mellitus type II, based on exposure to herbicide agents is not warranted. Diabetes mellitus and coronary artery disease are both considered to be a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). However, the evidence of record does not show, and the Veteran does not contend, that he was diagnosed with diabetes mellitus and/or coronary artery disease in service or that either disability manifested to a compensable degree within one year of the Veteran's separation. As such, service connection based on the diagnosis of a chronic disease in service or manifestation within one year of separation is not warranted. 38 C.F.R. §§ 3.303(b), 3.309(a). The Board notes that the Veteran was not provided with a VA examination to assess his diabetes mellitus and coronary artery disease. In order for a VA examination to be warranted, the evidence of record must indicate that a current disability may be associated with a Veteran's military service. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). This evidentiary requirement is a low threshold. McLendon, 20 Vet. App. at 83. Here, however, as noted above, the Veteran does not contend, and the evidence does not show, that the Veteran's diabetes mellitus and coronary artery disease had its initial clinical onset during his active service, or within one year of his active service, or that is otherwise related to his active service. In the absence of competent and credible evidence that the Veteran's diabetes mellitus and/or coronary artery disease is associated with his service, a VA examination is not required. 38 C.F.R. § 3.159 (c)(4); see McLendon v. Nicholson, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In summary, the evidence weighs against finding in favor of the Veteran's service connection claims for coronary artery disease and diabetes mellitus, to include as due to herbicide exposure. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran seeks entitlement to a TDIU. The Veteran generally contends that his service-connected bilateral hearing loss prevents him from securing and following substantially gainful employment. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a) A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Throughout the entire period on appeal, from May 29, 2013, the Veteran is in receipt of service connection for tinnitus (rated 10 percent disabling from May 29,2013), bilateral hearing loss (rated noncompensable from June 5, 2013, 10 percent disabling from August 5, 2015), fracture, fifth metacarpal, left hand (rated noncompensable from June 4, 1991), pterygium, both eyes (rated noncompensable from June 4, 1991), and scar, left thumb (rated noncompensable from June 4, 1991). As such, the Veteran does not meet the minimum percentage requirements under 38 C.F.R. § 4.16(a) for entitlement to a schedular TDIU. Where the schedular percentage requirements are not met, entitlement to a TDIU on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities; consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, such cases are referred to the Director of Compensation Service for extraschedular consideration. Referring a case for extraschedular consideration requires that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. The Board has considered whether the Veteran's disability warrants referral for extraschedular consideration. However, the Board finds that a remand for referral of the Veteran's claim for consideration of a TDIU is not warranted. Turning to the relevant evidence, a July 2013 VA treatment note documents that the Veteran was an unemployed security guard. See July 3, 2013 VA Treatment Note During the Veteran's March 2014 VA audiological examination, the Veteran reported that his hearing loss results in functional loss in that he has a really hard time understanding. When anyone on his right side is speaking to him, he can barely tell they are speaking at all. The Veteran reported that he has "learned to live with [his hearing loss] but every now and then it can cause a dull pain and discomfort." A May 2015 VA treatment note documents that the Veteran last worked 2013, as a security guard. See May 22, 2015 VA Treatment Note A January 2020 VA treatment note documents that the Veteran is retired. See January 28, 2020 VA Treatment Note The Veteran underwent another VA audiological examination in March 2020. The examiner concluded that the Veteran's hearing loss does not preclude employment. He explained that hearing loss is expected to create some difficult hearing situations such as background noise, over the phone, or when the speaker's face cannot be seen. However, the examiner states that the Veteran's hearing loss should not significantly affect his ability to obtain or maintain gainful employment. In a December 2020 statement, the Veteran, through his representative reported that he is unable to work due to hearing loss. His hearing loss is a "safety issue." See December 2020 Informal Hearing Presentation (IHP) In light of the December 2020 IHP, the Board remanded the claim in February 2021 for the RO to send the Veteran an Application for Increased Compensation Based on Unemployability (TDIU) (VA Form 21-8940). In February 2021, the RO sent the Veteran VA Form 21-8940 requesting that he complete and submit the form. As of the date of this decision, the Veteran has not responded to the RO's request. There is no indication that the Veteran has sought private treatment for his service-connected bilateral hearing loss. None of the Veteran's treating VA clinicians make any suggestion that the Veteran is unemployable at any during the period on appeal. Based on the foregoing evidence of record, the Board finds that the evidence does not show that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation during the period from May 29, 2013. In making this determination, the Board acknowledges that the Veteran's service-connected disabilities certainly cause him some level of functional impairment. However, there is no evidence to support a finding that these functional impairments otherwise render him unable to secure or follow a substantially gainful occupation. Finally, as discussed above, the Board finds it significant that the Veteran has not provided the information or VA forms requested by VA to adjudicate his claim of entitlement to a TDIU rating, specifically a VA Form 21-8940. The Court in Wood v. Derwinski stated that, "the duty to assist is not a one-way street." If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Given the evidence that the Board does have, it appears that the Veteran's service-connected disabilities do not limit him such that he is unable to obtain or retain substantially gainful employment. Based on the foregoing, the Board does not find compelling evidence that the Veteran's service-connected bilateral hearing loss caused such an exceptional or unusual disability picture so as to place him in a different category than other veterans with an equal rating of disability at any time during the period on appeal. Therefore, the Board does not find that the Veteran's claim should be referred to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). As such, the Veteran's claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.