Citation Nr: 23009673 Decision Date: 02/15/23 Archive Date: 02/15/23 DOCKET NO. 17-48 607 DATE: February 15, 2023 ORDER Service connection for a neurological disability of the right lower extremity, to include as due to herbicide agent exposure, is denied. Service connection for a neurological disability of the left lower extremity, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against establishing that the Veteran was exposed to herbicide agents in service. 2. The evidence of record persuasively weights against establishing that the Veteran's current diagnosis of neuropathy of the right and left lower extremities was incurred in or was otherwise caused by his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neurological disability of the right lower extremity, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 5017(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a neurological disability of left lower extremity, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 5017(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1969 to August 1971. This appeal is being processed under the legacy review system. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2017 rating decision issued by a Department of Veterans Affairs (VA) regional office, an agency of original jurisdiction (AOJ). In April 2019 and November 2021, the Board remanded this appeal for further evidentiary development. For the reasons discussed below, the Board finds that there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aires v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to establish service connection, there must be competent and credible evidence demonstrating (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a presumptive basis for the diseases set forth in 38 C.F.R. § 3.309(e). With respect to early-onset peripheral neuropathy, service connection may be granted on a presumptive basis if a veteran was exposed to an herbicide agent during active military service and it manifests to degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii); Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act (PACT Act of 2022), Pub. L. No. 117-168, 136 Stat. 1759 (2022). A veteran is presumed to have been exposed to an herbicide agent in service if they (1) served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) served in Thailand at any United States or Royal Thai base during the period beginning on January 9, 1962, and ending on June 20, 1976; (3) served in Laos during the period beginning on December 1, 1965, and ending on September 30, 1969; (4) served in Cambodia at Mimot or Krek, Kampong Chan Province during the period beginning on April 16, 1969, and ending on April 30, 1969; or (5) served in Guam or American Samoa, or in the territorial waters thereof, during the period beginning on January 9, 1962, and ending on July 31, 1980, or served on Johnson Atoll or on a ship that called at Johnson Atoll during the period beginning on January 1, 1972, and ending on September 30, 1977. 38 C.F.R. § 3.307(a)(6); PACT Act of 2022. Ordinarily, a veteran is competent to report symptoms and experiences observable by his senses; however, a veteran is not competent to prove a matter requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board has recharacterized the claim for service connection for "peripheral neuropathy" of the right and left lower extremities more broadly to one for a neurological disability of the right and left lower extremities in view of the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of entitlement to service connection for a neurological disability of the right lower extremity, to include as due to herbicide agent exposure. The issue of entitlement to service connection for a neurological disability of the left lower extremity, to include as due to herbicide agent exposure. The Veteran contends that he has neurological disabilities of the right and left lower extremities due to his service. See December 2016 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. More specifically, the Veteran asserts that his claimed neurological disabilities of the right and left lower extremities are due to exposure to herbicide agents in service. He states that while he was serving on Okinawa, he volunteered as a driver for the company. As such, he recalled having earned a license to operate half ton, three-quarter ton, and two and half ton trucks in service. Towards the end of his service in Okinawa, he worked on a temporary assignment for three weeks driving chemical testing equipment, which was used to test for herbicide agent leaks, from various camps to Naha Port, as well as transporting herbicide agents stored on the island to the port. See December 2016 Statement in Support of Claim; June 2017 Statement in Support of Claim; December 2022 Letter from the Veteran. Naha Port was a transfer point where herbicide agents stored on the island were transported to Johnston Atoll. This was done as a part of Operation RED HAT. On one occasion, he recalled being summoned to port when barrels of herbicide agents had fallen off their pallets while being loaded. He believed that he may have come into close contact with herbicide agents at that time. A review of the claims file establishes that the Veteran has been diagnosed with neuropathy of the right and left lower extremities. See July 2015 WNA Examination Report (diagnosed as motor and sensory neuropathy of mixed axonal and demyelinating); December 2019 VA Peripheral Nerves Conditions Examination Report (diagnosed as large fiber bilateral lower extremity polyneuropathy). As such, the current disability element of this claim has been met. Next, the Board turns to the in-service incurrence element of this claim. In that regard, the Board notes that the Veteran has consistently asserted that his neuropathy of the right and left lower extremities is due to his exposure to herbicide agents in service. He has not proffered any alternative in-service event, disease, or injury that may be related to his neuropathy of the right and left lower extremities. A review of the Veteran's service treatment records is negative for any diagnoses of a neurological disability of either lower extremity or complaints of or treatment for neurological issues associated with either lower extremity. In fact, at the time of his separation examination, the Veteran denied having or having had any cramps in his legs, lameness, foot trouble, neuritis, or paralysis. See June 1971 Report of Medical History (the Veteran denied having or having had). Consistent with his lay reports at the time of separation, his separation examination revealed no abnormalities of the feet and lower extremities, as well as no neurologic abnormalities. See June 1971 Report of Medical Examination. A review of the Veteran's service personnel records (SPRs) confirms that he had service in Okinawa, Japan, from August 1970 to August 1971. See Military Personnel Records Foreign Service. At that time, his principal duty was as a Field Radio Repairman Assistant. See Military Personnel Records Record of Assignments. However, his SPRs do not show that he had any other secondary duties, such as serving as the company driver. Further, his SPRs are silent as to any special training or license he earned in order to drive half ton, three-quarter ton, and two and half ton trucks in service. As noted above, in April 2019 and November 2021, the Board remanded this appeal. The Board remanded, in part, to attempt verification of the Veteran's claimed exposure to herbicide agents in service during Operation RED HAT. Unfortunately, VA has been unable to verify his claimed exposure to herbicide agents in service. Following the Board's April 2019 remand, the AOJ received a November 2019 letter from the National Archives Research Services responding to its inquiry about unit records for the United States Army Maintenance Operations Director, United States Army, Pacific-Okinawa command during Operation RED HAT in 1970 as they related to the Veteran's duties. According to the archive specialist, they were unable to locate operational or administrative records relating to that specific command during 1970. Further, the archive specialists indicated that the files pertaining to Operation RED HAT provided no additional information regarding the duties of individuals or specific units. Following the Board's November 2021 remand, VA conducted research in another attempt to verify the Veteran's claimed exposure to herbicide agents. In the end, a VA researcher determined that the Department of Defense (DoD) has provided VA's Compensation Service with a list of locations outside of the Republic of Vietnam and the Korean demilitarized zone where herbicide agents were used, tested, or stored. See December 2021 E-mail. However, that list does not include the names of individuals that may have come into contact with herbicide agents. Further, the list contained no information regarding routine base maintenance activities that used herbicide agents that fall under the regulations governing herbicide agent exposure. See 38 C.F.R. § 3.307(a)(6)(i). Routine base maintenance activities, such as range maintenance, brush clearing, and weed killing, were accomplished with commercial herbicides on military bases worldwide. Notably, the VA researcher noted that DoD has not identified any location in Japan where herbicide agents were used, tested, stored, or transported. These herbicide agents were developed for jungle combat operations. While they were used in the Republic of Vietnam from 1962 to early 1971, there were no combat operations in Japan during those years. Further, the VA researcher noted that Japan was not in the herbicide agent shipping supply line, which went directly from storage in Mobile, Alabama, or Gulfport, Mississippi, to the Republic of Vietnam through merchant ships. The VA researcher recommended that for further information, the matter should be referred to VA's Compensation Service's Military Records Research Center (MRRC). Pursuant to this recommendation, a January 2022 e-mail indicates that the AOJ submitted a research records request to MRRC attempting to verify the Veteran's claimed herbicide agent exposure once more. In response, a November 2022 Records Research Response was received. This VA researcher indicated that while records had been requested from the custodian of Army unit records for 1970-1971 for the National Archives and Records Administration (NARA), the NARA custodian was unable to locate such records. In November 2022, the AOJ sent the Veteran a letter notifying him that VA has been unable to locate records verifying that he took part in Operation RED HAT. In response, the Veteran submitted a December 2022 letter explaining that the only reason he could provide for there being no record of his participation would be that it was because he volunteered to serve as an additional company driver. The Board notes that in August 2017, the Veteran submitted an excerpt about a file titled Operation Red Hat: Men and a Mission. According to the excerpt, which was from NARA, the film showed that in 1969, it was discovered that toxic munitions were in Okinawa and that the American President promised the Japanese Prime Minister that they would be removed. As such, the first convoy of chemical weapons were sent to Johnston Island in February 1971. The operation to transport the toxic munitions were completed in September 1971. At best, this excerpt verifies that Operation Red Hat occurred from February to September 1971, during a period of time the Veteran was stationed in Okinawa. This excerpt suggests that toxic munitions may have been stored in Okinawa during the time the Veteran was stationed there. However, the excerpt neither supports nor contradicts the circumstances under which the Veteran's claimed exposure to herbicide agents in service occurred. The Veteran also submitted a printout titled Agent Orange/Operation Red Hat Documents which appears to be from Wikipedia. This printout includes NARA document files numbers with dates and titles of documents. However, these printouts do not provide any information specific to the Veteran's unit or his duties during his service in Okinawa. Thus, this printout also neither supports nor contradicts his claimed exposure to herbicide agents in service. The Board has considered the Veteran's explanation that his participation in Operation Red Hat may not have been documented because he volunteered to serve as an additional company driver. However, as noted above, the Veteran stated that he had earned a license to operate half ton, three-quarter ton, and two and half ton trucks in order to perform this additional duty. However, his SPRs are silent as to any special training or license he earned in order to drive half ton, three-quarter ton, and two and half ton trucks in service. Thus, the Veteran's lay statements are inconsistent with the contemporaneous evidence of record, which would ordinarily document any military education or specialized training. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (credibility may be appraised by evaluating a witness' statements for interest, bias, demeanor, internal consistency, facial plausibility, or consistency with the other evidence of record). Further, the Board notes that a review of the Veteran's medical evidence of record produces a February 2017 Environmental Registry Evaluation regarding potential exposure to herbicide agents in service. During this evaluation, while the Veteran reported that he was a driver while stationed in Okinawa for his last three weeks driving trucks in support of Operation RED HAT, he also wondered if the radios he repaired as a part of his regular duties had been exposed to herbicide agents as radios that had been damaged in Vietnam. However, he did not provide any further information regarding how the radios he repaired could have been exposed to herbicide agents while in the Republic of Vietnam. During the February 2017 evaluation, the Veteran did not describe any circumstances or conditions during his participation in Operation RED HAT that would have exposed him to herbicide agents. Rather, he told the evaluator that he read about Okinawa being a storage site for chemicals and herbicide agents and that they were used to defoliate in Okinawa. Additionally, he indicated that he was also stationed at Fort Gordon, Georgia. The evaluator noted that Fort Gordon is among the places where herbicide agents were tested according to VA. The Board notes that VA has acknowledged that herbicide agent testing was conducted at Fort Gordon from July 15-17, 1967, and during an unspecified period in 1968, but prior to July 1, 1968. See VA Public Health, Herbicide Tests and Storage in the U.S., https://www.publichealth.va.gov/exposures/agentorange /locations/tests-storage/usa.asp#Georgia (last visited Feb. 11, 2023). While a review of the Veteran's SPRs confirms that he served at Fort Gordon, it was from February 1970 to July 1970; therefore, he did not serve at any time during which herbicide agent testing was conducted at Fort Gordon. See Military Personnel Record Record of Assignments. Even if the Board accepted the Veteran's lay statement as sufficient proof that he performed duties as an additional company driver and participated in Operation RED HAT in that capacity, the Board finds that his lay statements do not sufficiently demonstrate that he came into contact with herbicide agents. Notwithstanding the Veteran's belief that he may have come into close contact with herbicide agents during that time, at best, his lay statements show that he drove the truck that transported the chemical testing equipment, which was used to test for herbicide agent leaks. He has not indicated that he loaded or unloaded the chemical testing equipment, was in close proximity to the chemical testing equipment when it was used to test for herbicide agent leaks, or assisted in loading barrels of herbicide agents, to include when he was called to port when barrels of herbicide agents had fallen off their pallets while being loaded. Especially, with respect to the occasion that he was called to port when barrels of herbicide agents had fallen off their pallets while being loaded, the Veteran has not provided any information regarding the circumstances of how he would have been exposed to herbicide agents at that time. Considering the above, the Board finds that the Veteran's lay statements regarding his claimed exposure to herbicide agents in service are less probative than the other evidence of record. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board's inherent fact-finding authority includes the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Thus, the Board finds that the evidence of record persuasively weighs against establishing exposure to herbicide agents in service. See Lynch v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc). Given that the Veteran has not contended any other in service incurrence for his neuropathy of the right and left lower extremities and the evidence of record does not reasonably raise any other in-service event, injury, or disease, the Board further finds that the evidence of record persuasively weighs against establishing the in-service incurrence element of this claim. Id. As the in-service incurrence element of the claim has not been met, necessarily the nexus element of this claim cannot be met. Accordingly, service connection for a neurological disability of the right and left lower extremities, to include as due to herbicide agent exposure, is denied. Jenna Brant Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suh, G., 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.