Citation Nr: 18137634 Decision Date: 09/25/18 Archive Date: 09/21/18 DOCKET NO. 16-17 110 DATE: September 25, 2018 ORDER Service connection for chronic obstructive pulmonary disease (COPD) due to Agent Orange exposure, previously claimed as pulmonary fibrosis, is denied. Service connection for atherosclerosis due to Agent Orange exposure is denied. Service connection for prostate cancer due to Agent Orange exposure is denied. FINDING OF FACT The Veteran was not exposed to herbicide agents while he was stationed in Fort Gordon, Georgia or Fort Clayton, Panama. CONCLUSIONS OF LAW 1. The criteria to establish service connection for chronic obstructive pulmonary disease have not been met. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307 (2017). 2. The criteria to establish service connection for atherosclerosis have not been met. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303(d), 3.307, 3.309 (2017). 3. The criteria to establish service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303(d), 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1966 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 and a March 2015 rating decision of the Los Angeles, California Regional Office (RO). Service Connection As the only theory of service connection raised by the Veteran or the record is herbicide agent exposure, the Board will limit its analysis to this theory. COPD, atherosclerosis and prostate cancer The Veteran contends that while he was stationed in Fort Gordon, Georgia, he was exposed to Agent Orange which resulted in his COPD, atherosclerosis and prostate cancer. Specifically, the Veteran contends that as radio teletype operator training instructor, he led trainees into the field in Fort Gordon to conduct training exercises and because of encountering the soil, he was exposed to Agent Orange. He also contends he was exposed to Agent Orange when he was stationed at Fort Clayton, Panama, but provided no specifics regarding that claimed exposure. Exposure to herbicide agents is only presumed under extremely specific circumstances, including service in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Fort Gordon and Fort Clayton are not among the specified sites. The Veteran does not contend and his military personnel records do not show that he served under any of the circumstances specified in the regulations. Therefore, exposure to herbicide agents is not presumed for the Veteran. When exposure is not presumed, actual exposure to herbicide agents must be verified through appropriate service department or other sources for the presumption of service connection for an herbicide-related under 38 C.F.R. 3.309(e) to be applicable. If exposure to herbicide agents has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. 3.309(e) for herbicide-related diseases is applicable. Fort Clayton The Defense Personnel Records Information Retrieval System (DPRIS) confirmed in a January 2016 response: “The US Army historical records available to use do not document the spraying, testing, transporting, or storage of herbicides at Fort Clayton, Panama” during the time the Veteran was stationed there. The only evidence to the contrary submitted by the Veteran is in a Report of General Information dated in August 2014, when he stated he had read online that Agent Orange was used there. This vague report, standing alone, is insufficient to outweigh the official DPRIS verification. The Board finds that the Veteran was not exposed to herbicide agents at Fort Clayton, Panama. Fort Gordon The Veteran has submitted Department of Defense (DOD) documents indicating that testing of herbicide agents such as Agent Orange and Agent Blue occurred in Fort Gordon, Georgia from July 15, 1967 to July 17, 1967. The documents show that the testing was conducted by personnel from Fort Detrick’s Plant Science Laboratory in coordination with contract research on formulations by chemical industry and field tests by the U.S. Department of Agriculture and the University of Hawaii. The test took place at a delineated, specific test site. The Veteran’s record of assignments, a military personnel record, indicates that the Veteran was stationed in Fort Gordon, Georgia during and after the herbicide agent testing as an instructor from June 8, 1967 to September 12, 1967 and from April 2, 1968 to April 12, 1968. A November 2013 VA Memorandum from the Joint Services Records Research Center (JSRRC) Coordinator outlined the efforts made to corroborate the Veteran’s assertion of exposure to herbicide agent at Fort Gordon. The JSRRC found that there is no record of operational use of herbicide agents on the military base, indicating that it was not used outside of the three-day test. Further, “there is no evidence of his unit or his MOS being involved in the Field Evaluation of Desiccants and Herbicide Mixtures as Rapid Defoliants.” A January 2015 response from the DPRIS, also acknowledged the testing of herbicide agents such as Agent Orange and Agent Blue in Fort Gordon, Georgia from July 15, 1967 to July 17, 1967. However, DPRIS indicated that there was no information that the Veteran was exposed to Agent Orange or other tactical herbicides while he was stationed in Fort Gordon. DPRIS is an electronic database that allows authorized users access to military personnel files for all service branches of the U.S. military. See https://www.dpris.dod.mil/#!?side=whatisdpris. Having established a proper foundation, the Board finds that it is reasonable to infer, due to an absence of documentation, that the DPRIS finding is competent and credible evidence that the Veteran was not exposed to Agent Orange while he was stationed in Fort Gordon, Georgia from June 8, 1967 to September 12, 1967 and from April 2, 1968 to April 12, 1968. See Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran’s report of separation from the armed forces (DD Form 214) reflects that his duty specialty was radio teletype operator. Due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012). As a radio teletype operator, the Veteran would not have been involved in the spraying and testing of herbicide agents, including Agent Orange and Agent Blue. Further, he does not assert that he was involved directly in spraying or testing. In an August 2014 written statement, the Veteran indicated that his duties as a radio teletype operator instructor were to transport radio equipment into simulated combat situations “in various field locations in Fort Gordon.” The Veteran also indicated that he stayed in the field with his trainees and equipment from two to three days. The Veteran reasserted his contention that he was exposed to Agent Orange due to his presence in the field in Fort Gordon. Although the Veteran is competent to relate his experiences in service, he is not competent to identify Agent Orange or herbicide agents because such medical and scientific determinations require education, training and experience that the Veteran does not possess. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a layperson’s assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event occurred during service). In support of his contention that he was exposed to Agent Orange in Fort Gordon, the Veteran submitted a November 2009 article titled “Veteran wins groundbreaking claim for Agent Orange exposure at Georgia military base” and a June 2011 WRDW-TV News 12 article. Both articles focus on a veteran who personally sprayed Agent Orange at Fort Gordon and was found by VA to have been exposed to herbicide agent there. A Board decision regarding a different veteran has no precedential weight under 38 C.F.R. § 20.1303. But even if it did, the veteran in the article is factually distinguishable to the Veteran in the present appeal because the Veteran did not himself spray Agent Orange. Therefore, this article is of low probative value because it does not establish that the Veteran was present in the herbicide agent test site. In a November 2013 buddy statement, a service member indicated that he was in the Veteran’s training class and that he and the Veteran went out into the field to set up equipment in Fort Gordon. This buddy statement is of low probative value because although it indicates that the Veteran went out in the field, it does not show that the field exercises took place in the herbicide agent test site. The Veteran has also submitted photos of Fort Gordon, an instructor training certification and letters of appreciation commending the Veteran for his training and supervision in the field of radio communications in Fort Gordon. These confirm his participation in field exercises, but are also of low probative value because it does not show that the field exercises took place in the herbicide agent test site. A preponderance of the probative evidence is against a finding that the Veteran was exposed to Agent Orange or herbicide agents while he was stationed in Fort Gordon, Georgia. Although the evidence shows that Agent Orange was used in one specific part of Fort Gordon, Georgia from July 15, 1967 to July 17, 1967, the Veteran has not provided competent and credible evidence of actual exposure. Therefore, service connection is not warranted and the claims are denied. LAURA E COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel