Citation Nr: A24029714
Decision Date: 06/06/24	Archive Date: 06/06/24

DOCKET NO. 230919-377397
DATE: June 6, 2024

ORDER

Entitlement to service connection for coronary artery disease (CAD) (claimed as coronary artery disease Agent Orange) is denied.

Entitlement to service connection for diabetes mellitus type II (claimed as diabetes mellitus type II Agent Orange) is denied.

Entitlement to service connection for a prostate disability (claimed as prostate cancer Agent Orange) is denied.

FINDINGS OF FACT

1. The Veteran was not exposed to herbicide agents during active service; and the evidence is persuasively against finding that the diagnosed coronary artery disease had its onset during service or is otherwise related to it.

2. The Veteran was not exposed to herbicide agents during active service; and the evidence is persuasively against finding that the diagnosed diabetes mellitus type II had its onset during service or is otherwise related to it.

3. The Veteran was not exposed to herbicide agents during active service; he does not have a current diagnosis of prostate cancer; and the evidence is persuasively against finding that the diagnosed enlarged prostate had its onset during service or is otherwise related to it.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for coronary artery disease (CAD) to include as due to herbicide agent exposure, are not met. 38 U.S.C. §§ 1110, 1112, 1116, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309.

2. The criteria for entitlement to service connection for diabetes mellitus type II to include as due to herbicide agent exposure, are not met. 38 U.S.C. §§ 1110, 1112, 1116, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309.

3. The criteria for entitlement to service connection for a prostate disability to include as due to herbicide agent exposure, are not met. 38 U.S.C. §§ 1110, 1112, 1116, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from May 1968 to November 1971.

The rating decision on appeal was issued in June 2023 and constitutes an initial decision regarding the service connection claims; therefore, the modernized review system, also known as the AMA, applies.

In a September 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Hearing option. In January 2024, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. Therefore, the Board may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In April 2024, the Veteran requested a 90-day extension to submit additional evidence. However, there is no authority under the AMA for affording the Veteran an extension of time to submit additional evidence beyond the initial 90-day period following a Board hearing. Accordingly, and because the 90-day period since the January 2024 Board hearing has expired, the Board will proceed to decide the appeal based on the evidence of record. 38 C.F.R. § 20.302.

Service Connection

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).

As to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam conflict (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309.

Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea. Specifically, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv).

Also, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) VA also amended its adjudication regulations to extend a presumption of herbicide exposure to certain veterans who served in, among other places, Thailand, Laos, Cambodia, Guam, American Samoa, and Johnston Atoll during specific periods of time. See H.R. 3967.

The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft- tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), parkinsonism, bladder cancer, and hypothyroidism. 38 C.F.R. § 3.309(e). The PACT Act also added hypertension to this presumptive list (see H.R. 3967). 

The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

1. Entitlement to service connection for coronary artery disease (CAD) (claimed as coronary artery disease Agent Orange)

2. Entitlement to service connection for diabetes mellitus type II (claimed as diabetes mellitus type II Agent Orange)

3. Entitlement to service connection for a prostate disability (claimed as prostate cancer Agent Orange)

The Veteran contends that his coronary artery disease (CAD), diabetes mellitus, and prostate disability are due to his in-service exposure to herbicide agents in the Korean Demilitarized Zone (DMZ).

At the outset, the Board notes that favorable findings in the June 2023 rating decision on appeal indicate that treatment records show diagnoses of coronary artery disease and diabetes mellitus; and that service personnel records show the Veteran served in Korea. Favorable findings made by AOJ are binding on the Board, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. See 38 U.S.C. § 5104A; 38 C.F.R. §§ 3.104(c); 20.801(a). Therefore, the record shows that the Veteran has current diagnoses of CAD and diabetes mellitus. Consequently, if the Veteran is found to have been exposed to an herbicide agent during military service, presumptive service connection is warranted for these conditions.

Regarding the prostate disability claim, the Veteran does not have prostate cancer but has a current diagnosis of an enlarged prostate. See Medical Treatment Record - Non-Government Facility. Per Clemons v. Shinseki, 23 Vet. App. 1 (2009) and its scope of claims progeny, the Board has expanded the claim of entitlement to service connection for prostate cancer to include any prostate disability as noted above. 

In an April 2019 statement, the Veteran made the following assertions: "The 6045th USAF Hospital was my duty station. The 6045th Hospital was a 12 bed ward that provided the following services: medical, shot clinic, pharmacy, veterinary services, military public health, dental services, and surgical services. The surgical clinic was condemned for surgery due to a fault in the plaster ceiling. That situation required all surgical patients to be transferred to the 121st evacuation hospital (Army Hospital) in Ascom City, on the DMZ. The 6045th USAF Hospital served well over 10,000 patients. A large number of patients to be transported could not be handled by emergency room personnel only. The hospital commander created a roster of first term troops in rotation to accomplish this task. I was placed on this roster and I began running missions from November of 1970 until I left in November of l971. During that time period, I participated in roughly 78 missions averaging 7 missions a month. See VA 21-4138 Statement In Support of Claim.

The Board notes that service department records indicate that the Veteran had active service in Korea. Specifically, he was assigned to the 6045th USAF Hospital, Korea between October 1970, and February 1971. The available evidence of record, however, does not suggest that the Veteran was assigned to a unit that operated in or near the Korean DMZ. Additionally, the U.S. Army and Joint Services Records Research Center (JSRRC) also noted that the records do not mention or document any specific duties performed by the 121st Evac. Hosp. unit members along the DMZ.

The Veteran asserted that he was assigned TDY (temporary duty) missions to the DMZ from November of 1970 until he left in November of l971. Specifically, the Veteran stated that he was assigned by the hospital commander to transport patients to the Army hospital in the DMZ because the hospital was short-staffed of emergency room personnel. At his Board hearing, the Veteran testified that his military occupational specialty (MOS) duties included delivering medical supplies throughout Korea and sometimes unloading shipments or cargo in the area of the DMZ. The Veteran also reiterated that his normal duty station was Osan Air Base which was about roughly 25 miles southwest of Seoul; but that he worked two or three nights a month in the emergency room and took patients to the 121st EVAC Hospital at the DMZ (approximately 78 times) in an ambulance; and that he stayed four to six hours and sometimes overnight depending on the condition of the patient. See January 2024 Hearing Transcript. 

While the Veteran contends that his service put him in the DMZ, the Board is unable to afford his statement significant probative weight, in light of the contemporaneous service personnel records and other official sources that do not place him in or near the DMZ. While the Veteran's Veteran believes that his duties took him to the DMZ, the Board must apply the law as Congress has enacted it, which requires sufficient proof of service in the DMZ. The Veteran has not provided any further evidence on which the Board can rely to place him there and contemporaneous service records do not place him at the DMZ.  In short, the evidence does not support a finding that the Veteran was exposed to herbicides in service.

Competency and credibility determinations are solely within the province of the Board as fact finder. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself..."); see also Kahana v. Shinseki, 24 Vet. App.?428, 438 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, as opposed to cases in which there is evidence that is relevant either because it speaks directly to the issue or allows a reasonable inference to be drawn by the Board as factfinder). The Board explicitly makes the factual finding that the Veteran's lay statements are not credible evidence.

In short, his lay speculations or conjecture regarding his claimed exposure to herbicide agents during service are not substantiated by the evidence of record. As the Board finds no persuasive evidence to establish that the Veteran was exposed to herbicide agents in service, any of the claimed disabilities due to exposure to herbicide agents cannot be considered under these regulations. See 38 C.F.R. §§ 3.307 (a)(6)(iv), 3.309(e).

The Board finds that the threshold element of the claim for service connection, i.e., a current disability, is met. In this regard, VA treatment records show diagnoses of CAD, diabetes mellitus type II, and enlarged prostate.

Regarding in-service incurrence, as noted, the Veteran reported being exposed to herbicide agents which has led to his current disabilities. However, as discussed above, exposure to herbicide agents is not conceded.

Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Here, the record contains no competent and credible evidence establishing that an event, injury, or disease occurred in service with respect to the claimed CAD, diabetes mellitus type II, and enlarged prostate disabilities. In fact, the service treatment records are silent for any complaints, treatment, or diagnosis of any of the conditions. A mere conclusory generalized lay statement that military service caused the claimant's current condition is insufficient to require an examination under McLendon. See also Waters v. Shinseki, 601 F.3d 1274 (2010), 601 F.3d at 1278-79 (rejecting appellant's argument that his "conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C. § 5103A (d)(2)(B).]"). Accordingly, VA examinations are not warranted in this case.

Accordingly, without an established event, injury, or disease in service, the Board finds that VA's duty to assist to provide an examination has not been triggered regarding his claim for CAD, diabetes mellitus, and enlarged prostate. The weight of the competent and probative evidence is against finding that the Veteran's CAD, 

?

diabetes mellitus, and enlarged prostate had its onset in or is otherwise related to his period of active service.

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rogers, Nyella M. (she/her/hers)

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.