Citation Nr: 1736615	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  08-16 471	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for ischemic heart disease.

2.  Entitlement to service connection for Type II diabetes mellitus.  


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

J. Setter, Associate Counsel



INTRODUCTION

The Veteran had active service from August 1962 to June 1963.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin in January 2013.  In that decision, the RO denied service connection for ischemic heart disease, to include as due to herbicide exposure, and for diabetes mellitus type II, to include as due to herbicide exposure.  

This matter was remanded in April 2017 for further VA examinations and opinions. The directives having been substantially complied with, the matter again is before the Board. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDINGS OF FACT

1.  The Veteran did not serve in an area in which exposure to tactical herbicide agents may be presumed and is not shown to have been exposed to herbicides in service. 

2. The Veteran's claimed ischemic heart disease is not shown to be causally or etiologically related to an in-service event, injury or disease, or to be medically associated with herbicide exposure.

3. The Veteran's claimed diabetes mellitus II is not shown to be causally or etiologically related to an in-service event, injury or disease, or to be medically associated with herbicide exposure.


CONCLUSIONS OF LAW

1. The criteria for service connection for ischemic heart disease, to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).

2. The criteria for service connection for diabetes mellitus II, to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in April 2012 pertinent to this claim, prior to the initial unfavorable adjudication in January 2013.  This letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file.  Additionally, the VA has asked for and received relevant private medical treatment records relevant to this claim.  Social Security Administration records have also been attached to the Veteran's file. After multiple searches, the VA has formally determined that treatment records from January 1, 1963 to December 31, 1977 are unavailable; a formal memorandum of unavailability dated March 24, 2008 to that effect is in the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, VA obtained an examination with opinion in November 2016, and again in May 2017. The examinations and opinions were adequate because the examiners reviewed the history, based their opinions on a medical examination of the Veteran, and provided a sufficient supporting rationale for the opinions. Based on the foregoing, the Board finds the examinations and opinions to be thorough, complete, and a sufficient basis upon which to reach a decision on the Veteran's claim for service connection for a skin disorder. See Nieves-Rodriguez v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Since VA has obtained all relevant identified records and provided an adequate medical examination, its duty to assist in this case is satisfied.

II. Service Connection

Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection may also be established for ischemic heart disease and diabetes mellitus type II, if manifested to a degree of 10 percent or more within one year of service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a).  While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  38 C.F.R. § 3.307(c).

For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id.  Neither the ischemic heart disease nor the diabetes mellitus type II, however, were found during service nor have they been alleged to have manifested at that time.  See 38 C.F.R. §§ 3.307, 3.309.  Therefore, service connection based upon chronicity since active service, or manifestation to a compensable degree within a year of active service, is not for application in this case.

Finally, service connection can also be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6).  For the purposes of determining herbicide exposure, a veteran who served in qualifying locations during defined periods, to include Vietnam, Korea, or Thailand, is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii).  If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders, to include ischemic heart disease and diabetes mellitus type II.  See 38 C.F.R. § 3.309(e).  This presumption is specifically limited to those diseases listed. Id. For type II diabetes mellitus and ischemic heart disease, the prescribed time period within which the disease must manifest to a compensable degree is any time after service.  38 C.F.R. § 3.307(a)(6)(ii).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C.A. § 1154(a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Veteran contends that she is entitled to service connection for ischemic heart disease and diabetes mellitus type II, to include as due to herbicide exposure. For the reasons provided below, the Board finds that service connection for ischemic heart disease and diabetes mellitus type II is not warranted on a direct or presumptive basis. 

Service Connection on a Presumptive Basis

The Veteran does not contend she ever was stationed in Vietnam, Korea, or Thailand during active service. Rather, she contends she was exposed to herbicides while at basic training at Fort McClellan, Alabama from August 31 to November 19, 1962.  In a lay statement, the Veteran asserted she was taking part in field trainings out on the rifle range and during the training, was sprayed with something, and that she and her fellow recruits were told to cover themselves when being sprayed. 

The presumption of herbicide exposure applies only to veterans who served in Vietnam, Thailand, and along the Korean DMZ during the relevant time periods.  38 C.F.R. §3.307 (a)(6)(iii-v).  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.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007); McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating that the principles set forth in Combee, which pertained to radiation exposure claims, are equally applicable in cases involving claimed herbicide exposure).

Therefore, in this case, the Veteran must prove her assertion of direct exposure to herbicides with credible evidence. Fort McClellan, Alabama does not appear on the list of DOD installations outside of Vietnam where Agent Orange was used. See Department of Defense Report on Herbicides Used Outside of Vietnam. VA has developed specific procedures to determine whether a veteran was exposed to herbicides in vicinity other than the Republic of Vietnam or along the DMZ in Korea.  See VA's Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H., para 4(a). Here, the AOJ has attempted to verify with the Veteran approximate dates, locations, and the nature of the alleged exposure, and has sought verification with the Joint Services Records Research Center (JSRRC). In a reply memorandum dated January 4, 2013, the JSRRC responded that U.S. Army historical records available do not document the spraying, testing, transporting, storage, or usage of Agent Orange or other tactical herbicides at Fort McClellan during the appropriate time period.  Additionally, in response a query to the Armed Forces Pest Management Board (AFPMB), they responded in May 2015 that research from their literature retrieval system indicated that their records do not document any transportation, use, testing, disposal or storage of Agent Orange, or other tactical herbicides, at Fort McClellan. (Tactical herbicides are distinguished from commercial herbicides, in that the former are used for military applications only.)  The AFPMB indicated that any other herbicide or pesticide exposure would have been to commercial products available through the federal supply system at military installations during the stated period.  They noted that Agent Orange itself was not available domestically, and so it was not available to base maintenance activities.  Agent White was not fielded until 1966, after the Veteran's time at Fort McClellan, and its commercial variant, Tordon 101, was not used in the Department of Defense until 1967.  The only documented use of Tordon 101 at Fort McClellan occurred in 1975.

The Veteran, through her attorney, has supplied general materials alleging the presence of herbicide agents and other hazardous chemicals at Fort McClellan, and general studies indicating the dangers of such chemicals to plant and animal life, and the like, but was unable to provide any documentation that the Veteran herself was directly exposed to herbicide agents at Fort McClellan. The attorney noted multiple types of chemicals to include pesticides, chemical warfare agents, lead, benzenes, PCBs, explosive compounds, and radiological materials, but those are not herbicides.  The Board finds the general information submitted by the Veteran's attorney to be speculative and therefore not probative when attempting to prove the Veteran's direct exposure to herbicides during her basic training at Fort McClellan.

Additionally, the Board has taken the Veteran's lay statements into account, that while in basic training at Fort McClellan, that she participated in field exercises with her fellow recruits and were sprayed with an unknown substance after being told to cover up.  The Board must assess the credibility and weight of all the evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.   After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

The Board finds these statements competent, as the Veteran is capable of describing her experiences and symptoms. Layno, supra. However, the Board also finds that the Veteran is unable to say with any expertise that the material she and her fellow recruits were sprayed with was in fact an herbicide agent, given that such knowledge is beyond the Veteran's expertise as a layperson. Only those with specialized medical knowledge, training, or experience are competent to provide evidence on the question of diagnosis and causation for complex disabilities such as these.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  To the extent that the Veteran contends that these conditions are related to exposure to herbicides or her training involving chemical, biological, and radioactive substances in service, as a lay person, she is not competent to offer an opinion on a matter clearly requiring medical expertise, such as providing a medical nexus opinion.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer).  

The Board finds that the evidence provided from the official sources, to include the service treatment records, service personnel records, and information provided by the DPRIS, AFPMB, and JSRRC, outweigh the lay statements provided by the Veteran.  Absent corroborating evidence of exposure to herbicides outside of Vietnam, the Board finds that there is no basis for presumptive service connection due to herbicide exposure.  See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).

Based on all the foregoing, the Board finds that the evidence does not establish that the Veteran was exposed to herbicides, including Agent Orange, during her active duty service.  

Service Connection on a Direct Basis

The Board has also considered whether service connection can be established on a direct basis  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  However, here, the Veteran has made no such assertion.  The weight of the evidence does not demonstrate that service connection on a direct basis is warranted. 

The Veteran's diabetes mellitus Type II was first diagnosed in 1999, per the May 2017 VA examination and opinion, approximately 36 years after the Veteran left active service.  Thus, the requirement for a current disability is met. However, the examiner opined that "it is less likely than not that the Veteran's diabetes mellitus was caused by, or otherwise due to, her period of active service, to include conceded exposure to commercial herbicides or pesticides that would have been available in 1962."  The examiner's rationale was that he was "unable to locate any peer-reviewed studies that support the concept that 3 months of exposure to commercial herbicides or pesticides in 1962 would lead to type 2 diabetes 37 years later."  This examiner noted that the Veteran has multiple well-established non-service risk factors for the development of type 2 diabetes and that the Veteran's type 2 diabetes is more likely than not caused by these risk factors and not by events in service including herbicide or pesticide exposure. 

The Veteran's earliest symptoms relating to her ischemic heart disease are a stroke in December 2008 and chest pains in June 2011 per VA treatment records; the May 2017 VA examination indicates a 2012 date of diagnosis.  In the May 2017 VA examination and opinion, the examiner opined that "it is less likely than not that [the] Veteran's ischemic heart disease was caused by, or otherwise due to, her period of active service, to include conceded exposure to commercial herbicides or pesticides that would have been available in 1962."  The examiner's rationale was that the Veteran's reported "pain or pressure in chest" that was noted as "occasional functional chest wall pain" prior to separation in May 1963 is not relevant to ischemic heart disease, and that the Veteran has well-established risk factors for the development of ischemic heart disease including her age, extensive smoking history, high cholesterol, inadequate exercise, and hypertension.  The examiner indicated the he was unable to locate any peer-reviewed studies that support the concept that 3 months of exposure to commercial herbicides or pesticides in 1962 would lead to ischemic heart disease.  The examiner concluded: "[t]his Veteran's ischemic heart disease is more likely than not caused by these risk factors and not be events in service including herbicide or pesticide exposure."

Here, the Board finds these negative nexus opinions from May 2017 to be more probative than the Veteran's claims or her attorney's general and speculative assertion. These examiners reviewed the claims file and provided opinions that were sufficiently clear and had well-reasoned rationales. See Bloom v. West, 12 Vet. App. 185, 187 (1999).  

In this regard, the evidence does not show, and the Veteran has not otherwise contended, that her diabetes mellitus type II or ischemic heart disease began during service or is otherwise related to service.  Service treatment records are silent as to complaints of or treatment for either ischemic heart disease or diabetes mellitus type II.  The May 1963 report of medical examination, conducted at service separation, shows that the Veteran's heart was normal, and no signs of diabetes were present.  This evidence weighs against a finding that the Veteran's diabetes mellitus type II or ischemic heart disease was incurred in service.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In summary, the service treatment records do not show that her disorders were incurred in service. The Veteran did not receive treatment for or a diagnosis for her disorders for many years after service separation.  No medical professional has attributed the diabetes or heart disorder to service. Based on the foregoing, service connection on a direct basis is not warranted.

For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for ischemic heart disease and diabetes mellitus type II on a direct or presumptive basis, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for ischemic heart disease, to include as due to in-service herbicide exposure, is denied.

Entitlement to service connection for diabetes mellitus type II, to include as due to in-service herbicide exposure, is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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