Citation Nr: 1340229 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 07-37 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for Parkinson's disease, also claimed as tremors, to include as due to exposure to herbicides. 2. Entitlement to service connection for hypertension, to include as due to exposure to herbicides. 3. Entitlement to service connection for a kidney disability, to include as due to exposure to herbicides. 4. Entitlement to service connection for a visual disability, also claimed as glaucoma, to include as due to exposure to herbicides. 5. Entitlement to service connection for sleep apnea, to include as due to exposure to herbicides. 6. Entitlement to service connection for sinusitis, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2006 and March 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran failed to appear for a Board hearing in January 2012. The case was previously before the Board in May 2012, at which time the Board granted service connection for posttraumatic stress disorder and remanded the issues listed on the cover page, as well as the issue of service connection for coronary artery disease, to the RO. In May 2012, the RO granted service connection for coronary artery disease. Accordingly, that issue is no longer on appeal. The issue of entitlement to service connection for sinusitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran did not set foot on land in the Republic of Vietnam during his Vietnam Era service, or have inland waterway service, and his ship did not dock in Vietnam while he was on it; and the evidence does not show that he was exposed to Agent Orange or other tactical herbicide agents during his active military service. 2. The Veteran's currently diagnosed tremors, and the secondary Parkinson's disease which he had until medications causing it were stopped, were not manifest in service or to a degree of 10 percent within 1 year of separation and are unrelated to any incident of service. 3. The Veteran's current hypertension was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to any incident of service. 4. The Veteran's current kidney stones were not manifest in service or to a degree of 10 percent within 1 year of separation and are unrelated to any incident of service. 5. The Veteran's current glaucoma was not manifest in service and is unrelated to any incident of service. His refractive error is not a disease or injury which is subject to service connection. 6. The Veteran's current obstructive sleep apnea was not manifest in service and is unrelated to any incident of service. CONCLUSIONS OF LAW 1. The criteria for service connection for Parkinson's disease, and/or essential tremors are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. The criteria for service connection for a kidney disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 4. The criteria for service connection for a visual disorder, also claimed as glaucoma, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 5. The criteria for service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS All evidence of record, including that found on Virtual VA, has been considered. Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by letters dated in November 2005 and March 2006, and additional notice in October 2010 and November 2010. The notifications complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. VA has obtained all available service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for the disabilities at issue in January 2013; and afforded the Veteran the opportunity to give testimony before the Board. While the representative argued in February 2012 that the Veteran's service treatment records are "still incomplete", based upon an unexplained scar being noted on the Veteran's scalp between 1968 and 1971, and the scar on his right lower leg elongating, this is probably not the case. The scar was probably in existence earlier, without being noted, and one examiner probably measured the other scar differently than another, as no treatment is shown for either. The Board advised the RO to ensure that the Veteran's service treatment records are complete and associated with his claims file in May 2012. It is not clear whether it did so. However, an October 2005 records department communication indicates that complete medical records were mailed, and the Veteran has not alleged that there are any service treatment records missing showing treatment for any of the disabilities at issue. In fact, he remained silent when the RO asked him to provide the dates of medical treatment during service in November 2005. The RO found in May 2012 that there were no available records showing exposure to herbicides. To remand to attempt to obtain additional service treatment records in this case would serve no useful purpose, and so it is not necessary. See Soyini v. Derwinski, 1 Vet. App. 541 (1991) (the law does not require a useless act). The Board will fulfill its heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable since there is an allegation that service treatment records are incomplete. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA examined the Veteran for the disabilities at issue in January 2013 and obtained medical opinions. The examiner reviewed the claims folder and provided rationales for the opinions. This examination was therefore adequate. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied as needed with the Board's May 2012 remand by making exhaustive efforts to obtain additional evidence of in-service Agent Orange exposure, including through a search for records of Agent Orange exposure and service personnel information, obtaining additional available VA medical records, examining the Veteran as indicated, and readjudicating the claims. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic disease of the nervous system, cardiovascular-renal disease, including hypertension, and calculi of the kidney, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There is a presumption of Agent Orange exposure under 38 U.S.C.A. § 1116 (West 2002) for Veterans who set foot in Vietnam during the Vietnam Era, for those who served aboard ships in the inland waterways of Vietnam during the Vietnam Era, and for those who docked in Vietnam during the Vietnam Era. There is a presumption of service connection for Parkinson's disease based on in-service Agent Orange exposure. There is no presumption of service connection for hypertension, kidney disability, visual disability, or sleep apnea based on in-service Agent Orange exposure. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309; Haas v. Peake, 525 F.3d 1168 (2008). In August 2005, the Veteran stated that he served in Vietnam. In May 2006, he advised a doctor that he had been exposed to Agent Orange in service. In April 2008, he asserted that exposure to herbicides that were sprayed in Vietnam had caused his tremors. His reasoning was that he did not have tremors until he was exposed to herbicides in Vietnam. In October 2010, he indicated that at times, he was helicoptered into Vietnam to deliver or pick up packages or paperwork, as he was in communications. He noted that his records prove that he drew combat pay. In June 2011, he indicated that even though he was in the Navy, he felt that his ship was close enough to the Coast of Vietnam that he was exposed to Agent Orange. Service treatment records are silent for positive reference to the disabilities at issue. On service discharge examination in February 1971, and on annual reserve service examination in March 1972, the Veteran was clinically normal in all pertinent respects except for refractive error correctable by prescription lenses. In March 1972, he denied pertinent symptomatology and reported that he was in good health and on no medication. Except for refractive error, none of the disabilities claimed was shown for years after service. Hypertension was diagnosed privately in September 2003. Insomnia was reported privately in July 2004. Tremors were reported privately in October 2005. Glaucoma was diagnosed by VA in June 2010. Obstructive sleep apnea was diagnosed privately in November 2010. The Veteran was unsure when sleep apnea symptoms began, but he had gained about 60 pounds in the prior 18 months. On VA examination in January 2013, the examiner indicated that ureterolithiasis had been diagnosed in 2012. During a January 2011 phone call, the Veteran indicated that he may have been exposed to Agent Orange in Thailand and the Philippines. The Board remanded the case to the RO in May 2012. Subsequently, in May 2012, the records center indicated that it could not determine whether the Veteran served in Vietnam and that the record contained no conclusive proof of in-country service. In June 2012, the records center indicated that there were no records of the Veteran's exposure to Agent Orange in service. Deck logs for the U.S.S. OKLAHOMA CITY were obtained. They mentioned other individuals by name that went ashore and did not mention the Veteran doing so while off the coast of Vietnam. A VA publication for Agent Orange exposure purposes indicates that the U.S.S. OKLAHOMA CITY docked in Saigon, Vietnam in July 1964, well before the Veteran served. That was the only docking in Vietnam reported. A May 2009 service department memorandum indicates that in the course of its research efforts, it had reviewed numerous official military documents, ship histories, deck logs, and other sources of information related to Navy and Coast Guard ships and the use of tactical herbicide agents such as Agent Orange during the Vietnam Era, and had found no evidence that indicated that such ships transported such herbicide from the United States to Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. It could provide no evidence to support a claim of exposure to tactical herbicide while serving aboard a Navy ship during the Vietnam Era. A VA Memorandum concerning herbicide use in Thailand during the Vietnam Era indicates that service department information indicated that only limited testing of tactical herbicides was conducted in Thailand in 1964, well before the Veteran's service. The location of the tests was not anywhere near Royal Thai Air Force Base. Also, tactical herbicides were used and stored in Vietnam, not Thailand. On VA examination in January 2013, the examiner reviewed the Veteran's claims folder. The examiner indicated that ureterolithiasis had been diagnosed in 2012, and the Veteran indicated that kidney stones had been diagnosed in the last couple of years. He denied any treatment for kidney stones in service or any urinary tract infection in service. The examiner also indicated that the Veteran had never been diagnosed with Parkinson's disease and does not have it now. The examiner noted that the Veteran had sleep apnea. The examiner opined that the Veteran's neurological disorder (secondary Parkinson's disease and essential tremors), hypertension, sleep apnea, and kidney conditions were less likely than not caused by or related to his time in service, including Agent Orange exposure. The rationale was that the Veteran does not have primary Parkinson's, which was an Agent Orange exposure related condition. Instead, his primary condition was an essential tremor based on review of all treating data. He had had secondary Parkinson's, but this was a side effect of a prescription which had since been stopped. It was not the same as primary Parkinson's and was no longer responsible for his tremors. There was no evidence in the service treatment records that tremors started in service. Hypertension was not an Agent Orange exposure condition. The Veteran's hypertension was due to his age, genetics, obesity, and dietary factors. There was no medical evidence in the service treatment records that his hypertension started in service. His sleep apnea was not an Agent Orange exposure related condition. It is a condition of obstruction due to excess soft tissue in the oropharynx. In this case, it was due to the Veteran's neck size and obesity. There was no medical evidence for sleep apnea onset in service. There was a lack of evidence for kidney condition in the service based on review of the service medical records. It was clear that the Veteran's current kidney condition was kidney stones. This was due to genetics and dietary factors. It was not an Agent Orange exposure related condition. Based on the evidence, the Board finds that service connection is not warranted for Parkinson's disease (the preponderance of the evidence indicates that this was secondary Parkinson's disease, rather than the primary Parkinson's disease which is entitled to a presumption of service incurrence based on Agent Orange exposure) or tremors, hypertension, kidney stones, glaucoma, or sleep apnea. None of these was manifest in service, and no evidence relates any of them to service. Additionally, the Veteran's tremors, hypertension, and kidney stones were not manifest to a degree of 10 percent within 1 year of separation, but instead were first manifest many years after service, as were the other claimed disabilities. It is clear that the Veteran is a Vietnam Era veteran. He served during the Vietnam Era. Furthermore, his ship was stationed within the territorial waters of Vietnam at times during his service. Proof of combat pay is not proof of setting foot on land in Vietnam, docking to it, or serving in its inland waterways, or of Agent Orange exposure. The preponderance of the evidence indicates that the Veteran did not set foot on land in the Republic of Vietnam during the Vietnam Era. He served aboard the U.S.S. OKLAHOMA CITY, and the deck logs from it name other individuals who went ashore from it while it was off the shore from Vietnam, but not him. Moreover, he has submitted no documentary evidence of him setting foot on land or docking in the Republic of Vietnam during the Vietnam Era. Accordingly, any assertions that he was on or transported to the Vietnam landmass during his service are found to be not credible. Moreover, the service records indicate that the U.S.S. OKLAHOMA did not dock in Vietnam while the Veteran served aboard it, and that it did not go within the inland waterways of Vietnam while the Veteran was aboard it. Accordingly, any assertions to the contrary are found to be not credible. The arguments made regarding literature from Okieboat.com, indicating that the U.S.S. OKLAHOMA CITY "arrived" in Vung Tao and DaNang, are consistent with it being in the territorial waters of Vietnam as reported by the service department. The service department records are the most probative evidence, specifically indicating that there was no docking in Vietnam while the Veteran was on it. The February 2012 assertions by the representative that the U.S.S. OKLAHOMA CITY docked in Vung Tao and/or DaNang are contradicted by the probative military historical information provided from the service department, and so they are found to be not credible. Accordingly, the Board finds that it may not be presumed that the Veteran was exposed to Agent Orange in service. The Board also finds that the Veteran was not actually exposed to Agent Orange during his service. The Veteran has generically and otherwise asserted that he was exposed to Agent Orange in service. However, he has not provided any reliable indication that he was exposed to it in service, and in-service Agent Orange exposure is contradicted in part by service department records showing that Agent Orange was not aboard Navy ships. It is also contradicted by the service department's indication that Agent Orange use in Thailand stopped well before the Veteran's service in Thailand. As for the Philippines, no specifics regarding Agent Orange exposure there were given by the Veteran, and he only indicated that he "could" have been exposed to Agent Orange there. This is not enough evidence that he was. No other vehicle of Agent Orange exposure other than setting foot on land or docking in Vietnam has been claimed. In summary, the preponderance of the evidence indicates that the Veteran never set foot on land in Vietnam during the Vietnam Era, and that his ship did not dock in Vietnam or go into the inland waterways while he was on it. It also indicates that the Veteran was not likely exposed to herbicides during his time aboard the U.S.S. OKLAHOMA CITY, or in Thailand, and there is no evidence of exposure to them while in the Philippines. Even if the evidence did show that the Veteran was presumptively or actually exposed to tactical herbicides during his service, none of the disorders shown are presumptive to tactical herbicide exposure, and no medical evidence indicates that any of them are related to tactical herbicide exposure. Since the Veteran is a layperson, he is not capable of indicating that they are related to Agent Orange exposure. Medical evidence is required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, the refractive error of the Veteran's eyes which was shown in service is not a disease or injury which is subject to service connection. 38 C.F.R. § 3.303(c). In light of the above, service connection is not warranted for any of the disabilities claimed. The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for Parkinson's disease and/or tremors is not warranted. Service connection for hypertension is not warranted. Service connection for a kidney disorder is not warranted. Service connection for visual disability, also claimed as glaucoma, is not warranted. Service connection for sleep apnea is not warranted. REMAND Regarding the Veteran's claim for service connection for sinusitis, while the Veteran indicated before service that he had sinusitis, he is presumed, in the absence of clear and unmistakable evidence to the contrary, to not have had sinusitis prior to service, as service examinations of the Veteran's sinuses prior to service were normal. They actually were also normal on service discharge examination in February 1971 and on reserve service examination in March 1972, with the Veteran reporting histories at those times of sinusitis. The earliest post-service medical evidence showing chronic sinusitis by medical evidence was in July 2004, when the Veteran reported a longstanding history of nasal congestion and sinusitis, acute sinusitis was shown by CT scan, and surgery took place, resulting in postoperative diagnoses of chronic maxillary, ethmoid, frontal, and sphenoid sinusitis. Prior to this post-service, there is no mention of sinus problems prior to the Veteran's April 2004 report to his private physician that he had a history of sinus symptoms. In May 2012, the Board remanded the case for a VA examination with a nexus opinion as to whether the Veteran's current chronic sinusitis disability is related to service. (That would include any surgical scars or other residuals from or following the sinus surgery which took place in July 2004.) Based on the histories provided on service examinations, it is possible that the Veteran had sinusitis in service. The examination which was conducted in January 2013 is inadequate for rating purposes. The examiner did not specifically address the Veteran's sinusitis, which is the only subject of this appeal (and not allergic rhinitis as well). The examiner indicated that the Veteran's "ENT" conditions preceded his service based on the evidence, and that there was no medical evidence for an aggravation in service. An adequate medical examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the etiology of his current sinusitis disability. A copy of this remand as well as the claims folder and any records on Virtual VA should be provided to the examiner for review in conjunction with the examination. After reviewing the file and the remand, the examiner must render an opinion as to the following: a) Is it undebatable from a medical standpoint (1), that chronic sinusitis existed prior to the Veteran's service?; and (2), that chronic sinusitis, if undebatably existing prior to service, was undebatably not aggravated by service? b) It is at least as likely as not (a probability of at least 50 percent) that the Veteran's current chronic sinusitis disability (postoperative) is related to any sinusitis which occurred in service? The examiner should furnish reasons for the opinions. In doing so, the examiner should carefully take into account any history provided by the Veteran as to service symptoms, as well as service and post-service medical records, including the February 1971 service discharge examination report and the March 1972 reserve service examination report showing normal sinuses. The examiner must provide a comprehensive report including rationales for all opinions and conclusions, citing the objective medical findings leading to the examiner's conclusions. It should be noted that a nonresponse will not be accepted as an adequate response to the Board's inquiry. If the examiner concludes that any of the opinions requested cannot be answered without resort to mere speculation, a detailed explanation for why this is the case should be provided. 2. Thereafter, readjudicate the Veteran's pending claim in light of the expanded record. If service connection for sinusitis remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs