Citation Nr: 22012013 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 14-20 997 DATE: March 2, 2022 ORDER Service connection for ischemic heart disease (IHD) is denied. Service connection for diabetes mellitus, type II (diabetes), is denied. Service connection for a disorder manifested by hand tremors is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam, in one of the units designated by the Department of Defense (DOD) as having served in or near the Korean demilitarized zone (DMZ), or regularly and repeatedly operated, maintained, or served onboard C-123 aircraft, and, thus, he is not presumed to have been exposed to herbicide agents. 2. The evidence of record does not competently and credibly establish that the Veteran was exposed to herbicide agents while stationed in Okinawa, Japan. 3. IHD, diabetes, and a disorder manifested by hand tremors are not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. CONCLUSIONS OF LAW 1. The criteria for service connection for IHD have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1116A, 1116B, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1116A, 1116B, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a disorder manifested by hand tremors have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1116A, 1116B, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2012 by a Department of Veterans Affairs (VA) Regional Office. In August 2017, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2018 and May 2020, the Board remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to service connection for IHD, claimed as due to exposure to herbicide agents. 2. Entitlement to service connection for diabetes, claimed as due to exposure to herbicide agents. 3. Entitlement to service connection for a disorder manifested by hand tremors, claimed as due to exposure to herbicide agents. The Veteran contends that he is entitled to service connection for his currently diagnosed IHD, diabetes, and hand tremors, solely on the basis that such are the result of exposure to herbicides during his service with the Navy in the Vietnam era. In this regard, he does not allege, and the record does not show, that he first manifested IHD, diabetes, and/or hand tremors, during service or within one year of his discharge from service, or that such are otherwise related to service on a direct or presumptive basis. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). As pertinent to the Veteran's theory of entitlement, the law provides a presumption of service connection for certain diseases, to include diabetes and IHD, associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. Hand tremors are not included in the list of presumptive diseases. However, notwithstanding such presumption, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). For purposes of the presumption, "herbicide agents" are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). Veterans 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, or in or near the Korean DMZ between September 1, 1967, and August 31, 1971, are presumed to have been exposed to herbicide agents. 38 U.S.C. §§ 1116, 1116A, 1116B; 38 C.F.R. § 3.307(a)(6). This presumption also extends to individuals who performed service in the Air Force or Air Force Reserve under circumstances which the individual concerned 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. Id. The Veteran does not contend, and the evidence does not show, that he served in the Republic of Vietnam or regularly and repeatedly operated, maintained, or served onboard C-123 aircraft, or was in one of the units designated by the DOD as having served in or near the Korean DMZ. As such, he is not presumed to have been exposed to herbicide agents. Rather, the Veteran contends that he was exposed to herbicides while stationed in Naha, Okinawa, Japan, from June 1969 to March 1971. In this regard, his DD Form 214 reflects that he served in the United States Navy as a stock clerk, and service personnel records demonstrate that he was stationed in Naha, Okinawa, from June 1969 to March 1971. Further, the Veteran reported that he worked as an aviation storekeeper and his responsibilities required him to work in various locations where the supply warehouse and depots were located. He claims that he was exposed to herbicides due to the spraying of such chemicals to control vegetation near his place of work or by handling containers in the warehouses/depots. The Veteran further reported that he believed he was exposed to herbicides when he drove a friend to Camp Hanson soon after he arrived at Naha, i.e., in May or June 1969, and the cap popped off a hand sprayer and he was sprayed in the face that summer. He also stated that, in August 1969, he saw leaky barrels of Agent Orange, identified by an orange strip, being offloaded from a ship and loaded onto a truck, then hauled north and buried. The Veteran further contends that he assisted with cleanups of spilled herbicides at Kadena Air Force Base, which also resulted in barrels leaking herbicides onto his clothing without protective gear. In support thereof, the Veteran submitted news articles indicating that barrels of what is believed to be herbicides were discovered buried at Kadena, Okinawa, Japan and a reference to a September 2015 report that the DOD acknowledged Agent Orange in Okinawa. Nonetheless, based upon a review of the evidence, the Board finds that service connection for IHD, diabetes, and a disability manifested by hand tremors is not warranted as the record does not competently and credibly establish that the Veteran was exposed to herbicide agents during service or that such disorders are otherwise related to any aspect of his military service. In this regard, the Agency of Original Jurisdiction (AOJ) attempted to verify the Veteran's exposure to herbicides coincident with his service in Okinawa, Japan, by contacting National Personnel Records Center (NPRC) in July 2011. In August 2011, NPRC indicated that there was no record of the Veteran's exposure to herbicides. In September 2011, an e-mail was sent to the Agent Orange mailbox and a negative response was received that same month. Pursuant to the April 2018 remand, additional development was conducted to attempt to verify the Veteran's exposure to herbicide agents. In this regard, a December 2019 Defense Personnel Records Information Retrieval System (DPRIS) response noted that the 1969 command history submitted by the Commander, Fleet Activities, Ryukyus and the U.S. Naval Air Facility in Naha, Okinawa showed that the unit was based in Okinawa, the largest of the Ryukyus Island chain. It also noted that, during 1969, the station aircraft flew an average of 27 flights per month and no military construction projects began or were completed. Thus, it concluded that the history did not reflect that Agent Orange or other tactical herbicides were stored or used on the installation. A December 2019 email response to the AOJ's inquiry regarding herbicide agents exposure noted that the DOD had provided Compensation Service with a listing of locations outside Vietnam and the Korean DMZ where Agent Orange was used, tested, or stored, but such did not contain names of individuals involved with Agent Orange. Additionally, there are no references to routine base maintenance activities such as range management, brush clearing, and weed killing as such was accomplished with commercial herbicides on all military bases worldwide. The response also noted that such commercial herbicides did not fall under the regulations governing exposure to herbicide agents, to include Agent Orange, at 38 C.F.R. § 3.307(a)(6)(i). The email also indicated that DOD had not identified any location on the island of Okinawa where Agent Orange was used, tested, stored, or transported. In this regard, it was noted that Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. There were no combat operations on Okinawa during those years, so there was no need for Agent Orange use there. Additionally, Okinawa was not on the Agent Orange shipping supply line, which went directly from storage at Gulfport, Mississippi, to South Vietnam via merchant ships. Therefore, it was concluded that the Compensation Service could provide no evidence to support the Veteran's claim and it was suggested that referral to the U.S. Army and Joint Services Records Research Center (JSRRC) be made to attempt to corroborate the Veteran's claimed exposure to herbicide agents. Thereafter, in September 2021, JSRRC noted that the DOD had not identified any location at the U.S. Naval Station in Okinawa, Japan, where Agent Orange was used, tested, stored, or transported. In this regard, it was also noted that Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. U.S. Naval Station in Okinawa, Japan, was not on the Agent Orange shipping supply line, which went directly from storage at Mobile, Alabama, or Gulfport, Mississippi, to South Vietnam via merchant ships. Also, there was no scientific evidence available to VA showing that being in the vicinity of or working on aircraft or equipment previously used in Vietnam or in handling of Agent Orange could be considered as exposure to active Agent Orange or could result in long-term health effects. Thus, it concluded that no evidence was located to support documentation of the claimed events. In light of the foregoing, the Board concludes that there is no competent and credible evidence that the Veteran was exposed to herbicide agents coincident with his service in Okinawa, Japan. In this regard, the Board recognizes his genuine belief that he was exposed to herbicide agents during his military service; however, he is not competent to identify the particular chemicals to which he was exposed. Moreover, while he has submitted articles suggesting the presence of herbicide agents in Okinawa, Japan, such allegations have not been substantiated by DOD. The Board further notes that, in October 2021, the Veteran argued that his direct exposure to herbicides was not adequately addressed as only exposure to Agent Orange was discussed. However, the December 2019 DPRIS response noted that other tactical herbicides (in addition to Agent Orange) were not used or stored in Okinawa, Japan. Additionally, the December 2019 email response indicated that, while commercial herbicides were used for routine base maintenance activities such as range management, brush clearing, and weed killing worldwide, such did not fall under the regulations governing presumptive service connection based on exposure to herbicide agents. In this regard, the Board observes that there is no indication, beyond the Veteran's generalized lay statements, that his IHD, diabetes, and hand tremors are related to exposure to commercial herbicides such that VA's duty to assist by providing a VA examination or opinion is triggered, or that service connection on a direct basis is warranted. See McLendon v. Nicholson 20, Vet. App. 79 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination). Additionally, while the Veteran argued that working on or near planes/equipment previously used in Vietnam was considered as positive exposure, the September 2021 response from JSRRC indicates that there is no scientific evidence available to VA showing that being in the vicinity of or working on aircraft or equipment previously used in Vietnam or in handling of Agent Orange could be considered as exposure to active Agent Orange or could result in long-term health effects. Further, to the extent that the Veteran cited prior Board decisions awarding benefits based on such alleged exposure, the Board observes that such are not binding on the Board, unless such specifically addressed this particular Veteran's case, which they did not. 38 C.F.R. § 20.1303; McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). Thus, the Board finds the Veteran's arguments are without merit. In light of the foregoing, the Board concludes that there is no competent or credible evidence that the Veteran was exposed to herbicide agents while stationed in Okinawa, Japan, or that his IHD, diabetes, or hand tremors are otherwise related to any aspect of his military service . Thus, service connection for such disorders is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the weight of the probative evidence is against the Veteran's claims for service connection for IHD, diabetes, and a disorder manifested by hand tremors, that doctrine is not applicable and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark 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.