Citation Nr: 25002425 Decision Date: 02/19/25 Archive Date: 02/19/25 DOCKET NO. 17-33 136 DATE: February 19, 2025 ORDER Entitlement to service connection for coronary heart disease as a result of exposure to herbicide agents is denied. Entitlement to service connection for diabetes mellitus as a result of exposure to herbicide agents is denied. FINDINGS OF FACT 1. The Veteran did not serve at Eglin Air Force Base during active service. 2. The evidence does not support that the Veteran was exposed to herbicide agents during service, nor does it show that the Veteran's heart disease or diabetes mellitus had their onset during or are otherwise related to his period of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for coronary heart disease have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1961 to January 1965. This case arises from a February 2013 rating decision that denied entitlement to heart condition and diabetes mellitus type II. The Veteran submitted a notice of disagreement in January 2014. The agency of original jurisdiction (AOJ) issued a statement of the case in June 2017. The Veteran submitted a Form VA 9 in June 2017 appealing the issues included herein. This case is in the legacy appeals system. Most recently in July 2024, the Board remanded the issues for additional development, to include requesting records from the Air Force Reserve and Fort Bragg, which is the location of the records for Pope Air Force Base to which the Veteran was stationed during part of his service. The Board finds that the AOJ has substantially fulfilled the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ issued a supplemental statement of the case in December 2024. Service Connection 1. Entitlement to service connection for coronary heart disease 2. Entitlement to service connection for diabetes mellitus The Veteran contends that he developed heart disease and diabetes mellitus type II as a result of exposure to Agent Orange during active service. After a thorough review of the evidence, the Board finds that entitlement to service connection for heart disease or diabetes mellitus type II is not warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Thus, there is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record. Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020). Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). The Federal Circuit has also clarified that lay evidence can be competent for the medical diagnosis or etiology of a condition if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). With regard to presumptive service connection, the law provides that certain diseases including ischemic heart disease and diabetes mellitus type II will be considered to have been incurred in service, even if there is no record of the disease during service, if that disease is associated with exposure to "herbicide agents" used in support of military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). A veteran is presumed to have been exposed to an herbicide agent if he or she served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that period of service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii)-(iv). Under VA regulation, service in the Republic of Vietnam is defined as "service in the waters offshore and 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). With regard to presumptive service connection based on service in Vietnam, the Veteran's records, including his DD Form 214, do not reveal any service in the Republic of Vietnam during the Vietnam era, or in or near the Korean DMZ from 1968 to 1971. That is, he did not serve on the landmass, inland waterways, or in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam. Therefore, the Veteran is not presumed to have been exposed to herbicides, including Agent Orange, on the basis of any Vietnam or Korean DMZ service. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii), (iv); 3.313(a). The Veteran agrees in a May 2019 statement that he is not eligible for a presumptive finding of herbicide agent exposure and is arguing for direct service connection based on direct exposure to herbicides during his service. However, the presumption of service connection for herbicide-related diseases could apply if exposure to an herbicide agent is shown at another location on a factual basis. VA policy provides that if the Veteran did not serve in Vietnam during the Vietnam Era or the Korean DMZ in a particular unit during the required timeframe, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for an herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable. Exposure to an herbicide agent is not presumed in such instances, but the exposure to one of the herbicide agents listed at 38 C.F.R. § 3.307(a)(6)(i) can still be established if shown by the facts of the case. Once exposure to an herbicide agent has been established by the facts of the case, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. However, the Board finds that exposure to an herbicide agent has not been established on a factual basis in this case. There is no probative, persuasive evidence of record demonstrating Agent Orange or other herbicide agent exposure for the Veteran. The Veteran's records show he performed communications duties such as relaying weather reports during his time in active service. The Veteran contends that during his time stationed at Pope Air Force Base in North Carolina in 1964, he was assigned temporary duty to Eglin Air Force base near Destin, Florida. The Veteran's records show that he served on active duty starting from January 1961 and separated from active service in January 1965, after which he was assigned to the Air Force Reserves. The Veteran submitted historic activity sheets of the various units, including the squadrons to which he was assigned, during service. The sheet shows that among other exercises, some personnel from the 729th were assigned to Shaw Air Force base with a detachment at Eglin Air Force Base for Operation Indian River in different points of 1964, from July to September. The Veteran, however, was assigned to the 728th unit which was assigned to Shaw Air Force base with a detachment to Pope Air Force Base. This is documented in his personnel records. The Veteran stated that he served in Turkey, which is supported by his personnel records, and then stated that while he was at Pope Air Force Base in North Carolina, he spent time on temporary duty for three months in Florida at Eglin Air Force Base. The statement submitted in May 2019 describes that the Veteran would set up tents in the field to maintain communications systems for aviation exercises. In the May 2019 statement, the Veteran asserts that he worked in an area labelled C-52 at Eglin and that Eglin was host to airplanes that supported Operation Ranch Hand, which were used to deliver Agent Orange in Vietnam. The Veteran submitted statements from his sisters who wrote that they recall the Veteran visiting the family home in Florida while the Veteran was on temporary duty at Eglin. The location of the family home noted in the statements as the town of Hollister is about 340 miles away from Eglin Air Force Base. The Veteran also submitted his own statement regarding the asserted assignment at Eglin, and a statement from a fellow service member. In both of those statements, each person states that they lived in the tents in the field, and his buddy wrote that they "would camp out for weeks at a time participating in field exercises." In a December 2019 email regarding this assertion, the VA regional office was informed that Eglin Air Force Base was a location of spray technique testing from 1962 to 1971 at the site labelled C-52A, which was closed to personnel and not located near personnel. The aircraft used for this mission had their own runway and did not share with other aircraft. VA does not acknowledge exposure to Agent Orange based solely on service at Eglin Air Force base and in order to support this claim, veterans must show evidence of working at or being associated with the test site C-52A during actual testing. In a July 2023 memorandum, VA found that the Veteran was not exposed to toxic exposure risk activity (TERA) during active service. The custodian of record for Air Force unit records in this context, the Air Force Historical Research Association, was unable to confirm the herbicide exposure event claimed by the Veteran. The evidence does not contain history of temporary duty order (TDY) to Eglin Air Force Base. The Veteran's personnel assignment history shows he was assigned to Pope Air Force Base in March 1964 and remained assigned there until he separated from service in January 1965. VA requested pay records from that period of time, and the agency in charge of that information stated that records from that time period have been destroyed. The probative evidence of record does not establish exposure to Agent Orange or other herbicide agents for the Veteran during service. The Veteran's records show he was stationed at Pope Air Force Base. The Veteran's records do not show he was temporarily moved to Eglin Air Force Base. The Board acknowledges the Veteran's and others' lay statements regarding his time at Eglin; however, the evidence is not consistent with the assertion that he was stationed at Eglin Air Force Base. Therefore, the Board finds that the Veteran was not exposed to herbicides on a facts-found basis during his period of service. The Board also notes that the evidence does not show, nor does the Veteran contend, that his diabetes mellitus type II and heart disease had their onset during his period of service or are otherwise related to his period of service aside from the contention of in-service herbicide exposure on a facts-found basis. Thus, for the reasons and bases discussed, the evidence for the claim versus the evidence against is not in approximate balance; instead, the most probative and, therefore, most persuasive evidence is against the claims. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, the Board denies the appeal for entitlement to service connection for heart disease and diabetes mellitus type II. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Miller, Erin (BVA) 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.