Citation Nr: 22016629 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-19 441 DATE: March 22, 2022 ORDER Entitlement to service connection for diabetes is denied. FINDING OF FACT Diabetes was not shown in service or for many years thereafter; disease is not otherwise shown to be related to service; and the Veteran is not shown to have been exposed to herbicides during service. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to May 1972. This matter is on appeal before the Board of Veterans Appeals (Board) from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the case was remanded for further development. The development noted in the August 2019 remand included attempted verification of herbicide exposure through requesting the Joint Services Records Research Center (JSRRC) to research the matter. The Board notes that this JSRRC function has been replaced by the internal efforts of the Veteran's Benefits Administration (VBA). Thus, pursuant to the August 2019 remand, the agency of original jurisdiction (AOJ), obtained the noted research internally, with a VBA field operations staff issuing a December 2021 report, which has been associated with the claims file. The Board finds that this action appropriately complied with the remand instructions. Entitlement to service connection for diabetes. The Veteran alleges that his current diabetes is related to alleged herbicide exposure during his service in Thailand. Service connection may be established 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain listed, chronic disabilities, including diabetes, are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. 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, are presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Further, diabetes is acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The controlling regulations contain no express provisions concerning exposure to herbicide agents in Thailand or its Royal Thai Air Force Bases (RTAFBs). However, VA's Compensation Service, part of the Veteran's Benefits Administration (VBA), has determined that a special consideration of herbicide exposure on a factual basis should be extended to Air Force veterans whose duties placed them on or near the perimeters of certain RTAFBs, to include U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. Herbicide exposure may be conceded on a facts-found basis if a veteran served on one of the listed RTAFBs during the Vietnam Era if that veteran served as a security policeman, security dog handler, member of the security police squadron, or otherwise served "on or near" the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Pertinent to this special consideration, VA's Compensation and Pension Service reviewed a declassified Vietnam era Department of Defense document titled Project CHECO Southwest Asia Report: Base Defense in Thailand, which indicated herbicides were used for vegetation control on the fenced in perimeters of military bases in Thailand to eliminate vegetation and ground cover for base security purposes. The basis for VBA loosening the standards and finding herbicide exposure in these cases is that veterans who regularly had contact with certain base perimeters had a greater likelihood of exposure to certain commercial pesticides, including herbicides, according to the CHECO report. Notably, if regular contact with the perimeter created a greater likelihood of exposure then the opposite is also true, meaning that little or infrequent contact decreased the likelihood of exposure. The simple fact that a veteran served at a RTAFB where herbicides were used does not entitle him or her to a finding that he or she was exposed to herbicides. In providing for service connection based on herbicide exposure in Thailand, VA specifically did not extend any presumption of exposure to all service members who served there (e.g. traveled through the gates to enter the base, or worked in view of the perimeter), but instead found that exposure could be conceded only on a more limited facts found basis. In a November 2021 order, the Court of Appeals for Veterans Claims (Court) required VA to respond to numerous questions concerning VBA's special consideration for determining whether exposure to herbicides during RTAFB service has been established on a factual basis. These queries included asking VA to define the word "on" in reference to a veteran's duties "on or near" an RTAFB perimeter; to indicate whether the use of the word "daily" in the guidance required a claimant to establish that he was on or near the perimeter every day he or she worked at the base; to indicate whether a veteran establishing he or she was on the perimeter weekly (or even monthly) based on review of duties was sufficient for a finding of presumptive exposure to herbicides; and to indicate the role that wind plays in determining what 'near' the perimeter means for purposes of determining herbicide exposure. See Stover v. McDonough, No 20-5580, November 2, 2021 Court Order. In a February 2022 response, VA clarified that the word "on" for purposes of determining herbicide exposure means being near the physical structure making up the base perimeter, making the words "on" and "near" synonymous as used by VBA. See Stover, Appellee's Response to the Court's November 2, 2021 Order (February 2022), pages 1-3. VA then went on to define the word "near." In this regard, VA noted that the term generally means "at or to a relatively short distance in space or time." However, VA emphasized that because it is a relative term, the context in which this word is used is especially important. VA noted that VBA used the term "near" in its special consideration to describe a person's proximity to the base perimeter with the understanding that the perimeter was just one part of an entire airbase that included numerous other locations (including sleeping quarters). VA emphasized that because VBA did not instruct herbicide exposure to be conceded for those who served on or near these other locations, by implication, it excluded service on or near these other parts of the base (in and of itself) as demonstrating that a veteran was exposed to herbicides. VA also emphasized that the reference to security personnel in the guidance further contextualized the meaning of "near," indicating that in full context, it is best defined as "close enough to physically touch the perimeter structure." Accordingly, in VBA's special guidance, the phrase "on or near the perimeter" means close enough to touch the perimeter structure. See Stover, Appellee's Response to the Court's November 2, 2021 Order (February 2022), pages 4-9. VA also explained the use of the word "daily" in the guidance in reference to veterans being able to establish herbicide exposure based on evidence of daily work duties. VA noted that the term "daily" generally means happening or done every day or every weekday. Thus, VA found that daily work duties were generally duties performed "every day that a person worked." More broadly, VA noted that reference to the word daily, considered in conjunction with the rest of the VBA special consideration, incorporated a frequency requirement in addition to the "on or near" proximity requirement. In this regard, it is necessary for the veteran to establish, including through evidence of daily work duties and/or performance evaluation reports, and/or other credible evidence of the same general kind or class, that his or her official work duties regularly placed him on or near the perimeter. Additionally, VA clarified that wind plays no role in determining whether a veteran served at or near the perimeter. See Stover, Appellee's Response to the Court's November 2, 2021 Order (February 2022), pages 9-13. The Veteran's service treatment records do not show any findings or complaints pertaining to diabetes or diabetic pathology. At his March 1972 separation examination, the Veteran's endocrine system was found to be normal and sugar testing on urinalysis was negative. On his March 1972 report of medical history at separation, the Veteran denied any family history of diabetes and reported that he was in good health. The Veteran's service personnel records indicate that he served at U-Tapao Royal Thai Airbase (RTAFB) in Thailand beginning in July 1970 for a period of approximately 1 year and 3 months. Performance evaluations indicate that he served in an administrative capacity, including as a flight records clerk in the reports and analysis branch. The records do not suggest that the Veteran had regular duty on or near the perimeter of the base. A March 2016 disability benefits questionnaire shows that the Veteran was diagnosed with type II diabetes. It was noted that he was originally diagnosed with the disease in 1990. In April 2017, the Veteran submitted a map of U-Tapao RTAFB. On the map, he labeled the area where he slept, which did not adjoin the perimeter but did not appear too far away from it. In his April 2017 Form 9, the Veteran reported that he spent 15 months at U-Tapao and lived in hutches inside the base. He noted that he slept, ate, and bathed there and that the ground was barren. He reported that he travelled all over the base including to the revetement area for the planes, the bomb assembly area, the beach, and the outdoor theater. He also noted that he was not confined to the base, so he sometimes went shopping and took tours to Bangkok. Additionally, he reported that he took personnel to other parts of the base as he had a military drivers' license. In a December 2021 VA Records Research Response, it was noted that a Veteran's Benefits Administration (VBA) Office of Field Operations staff person had researched the Veteran's assertion that he was exposed to herbicides while stationed at U-Tapao RTAFB. The staff person reviewed the April 1970 to December 1971 history for 307th Strategic Wing to which the Veteran was assigned. However, this history was negative as it did not report on unit personnel being exposed to herbicides, nor did it report on the locations of unit personnel in proximity to the base perimeter. In sum, the staff person concluded that no evidence was located to support the assertion of herbicide exposure. The above summarized evidence does not show that the Veteran's service at U-Tapao RTAFB involved regular duty on or near the base perimeter. In this regard, his personnel records show that he served in an administrative function, including as a clerk, involved with compiling records. There is no indication from his performance evaluations or any other documentation of record that this function involved regular duty on or near the base perimeter (i.e. close enough that he could touch the perimeter of the base). Also, even the Veteran's own descriptions do not tend to indicate that he was regularly on or near the perimeter of the base while performing his duties. In this regard, he simply indicated that where he slept was not too far away from the perimeter; that he crossed the perimeter at times when he would leave and return to the base; that he drove other service members to different locations on the base; and that he traveled to many different parts of the base. However, none of these assertions tend to indicate regular duty on or near the perimeter (i.e. close enough to touch it) and as noted, the personnel records, including the performance evaluation reports, indicate that work on or near the perimeter was not a part of his regular duty. Also, as explained by VA in the February 2022 response to the Court, a showing of regular presence on other specified areas of the base not within touching distance of the perimeter simply does not establish presence "on or near the perimeter." Thus, the Veteran's assertion that having slept in quarters that were not too far from the base perimeter (but clearly not within touching distance of it), does not establish regular presence "on or near the perimeter," nor does his assertions of bathing and eating there (or otherwise participating in activities on other parts of the base not within touching distance of the perimeter). Similarly, occasional leaving and entering of the base (i.e. crossing the perimeter) also does not establish regular duty on or near the perimeter. Moreover, there is no indication that the Veteran was otherwise exposed to herbicides at U-Tapao RTAFB and the December 2021 Records Research Response was negative for any such exposure. Consequently, the weight of the evidence is squarely against a finding that the Veteran was exposed to herbicides during his service in Thailand. Further, there is no indication or allegation that the Veteran served in Vietnam so as to warrant a presumption of service connection based on such service. Also, the Veteran has not alleged entitlement to service connection for diabetes based on a theory of entitlement other than exposure to herbicides (which as explained, is not established). Additionally, the evidence indicates that diabetes did not become manifest until 1990, approximately 18 years following separation. Moreover, there is no medical evidence which even suggests that the Veteran's current diabetes is related in any way to his military service. Accordingly, a VA examination was not necessary in this case and there is no basis for an award of service connection on a direct basis or based on a chronic disease becoming manifest within the first post-service year. 38 C.F.R. §§ 3.159(c)(4), 3.303, 3.307, 3.309. In sum, given that the Veteran is not shown to have been exposed to herbicides during service, and there is no other basis for awarding service connection, the evidence weighs persuasively against this claim. Accordingly, the Board does not have a basis for awarding service connection in this case. The claim is denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.