Citation Nr: 1613258 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 13-06 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for urticaria and tinea versicolor, and if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a previously denied claim of service connection for diabetes mellitus, type II, claimed as secondary to Agent Orange exposure. 3. Whether new and material evidence has been received to reopen a previously denied claim of service connection for erectile dysfunction (ED) claimed as secondary to Agent Orange exposure. 4. Entitlement to service connection for chloracne, claimed as secondary to Agent Orange exposure. 5. Entitlement to service connection for prostate cancer, claimed as secondary to Agent Orange exposure. 6. Entitlement to service connection for ischemic heart disease, claimed as secondary to Agent Orange exposure. 7. Entitlement to service connection for hypertension, claimed as secondary to Agent Orange exposure. 8. Entitlement to service connection for high cholesterol. REPRESENTATION Appellant represented by: Monera Seliem, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to August 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In March 2015, the Board remanded the case because the Veteran had requested to appear at a personal hearing at the RO before a Veterans Law Judge and the hearing had not yet been scheduled. In December 2015, the Veteran appeared for a Board hearing via video conference at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the Veteran's electronic record. The VLJ who conducted the hearing noted the current appellate issues at the beginning of the hearing, and asked questions to clarify the appellant's contentions and treatment history. The appellant provided testimony in support his claims and expressed his contentions clearly. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Moreover, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The reopened claims of service connection for urticaria and tinea versicolor, as well as the claim of service connection for chloracne and the claim to reopen the previously denied claim of service connection for sexual/erectile dysfunction, are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a February 1986 rating decision, the RO denied entitlement to service connection for a skin condition based on a finding that no urticaria was shown on post-service examination and the Veteran's current tinea versicolor was in a different site than what was treated in service. The Veteran did not appeal that determination. 2. In rating actions denying the Veteran's claim for service connection for a skin condition dated in December 1993, April 1994, November 1994, August 1995, March 2003 and April 2009, the RO found that new and material evidence had not been received to reopen the previously denied claim. The Veteran did not appeal these determinations. 3. In a March 2003 rating decision, the RO denied entitlement to service connection for diabetes mellitus, type II based on a finding that no diabetes was treated or diagnosed in service or within the first post-service year, and there was no evidence that the Veteran was exposed to herbicides in service. The Veteran did not appeal that determination. 4. In an April 2009 rating decision, the RO denied the Veteran's claim of service connection for diabetes mellitus, type II because no new and material evidence was received to reopen the previously denied claim. The Veteran did not timely appeal that determination. 5. Presuming its credibility, the evidence associated with the record since April 2009 relates to an unestablished fact necessary to substantiate the claim of service connection for urticaria and/or tinea versicolor, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of service connection for urticaria and/or tinea versicolor. 6. Evidence associated with the record since the April 2009 rating decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for diabetes mellitus, type II, is cumulative and redundant of evidence already of record; and therefore it does not raise a reasonable possibility of substantiating the claim of service connection diabetes mellitus, type II. 7. The Veteran did not serve in the Republic of Vietnam or in the "brown water" surrounding Vietnam; and, he is not shown to have service in any other designated area where the service department has determined that herbicide agents were used, and he is not shown to have been otherwise exposed to dioxin based herbicides during service. 8. Prostate cancer, ischemic heart disease, and hypertension were not first shown in service or within the first post-service year; and they are not otherwise shown to be related to service, including claimed Agent Orange exposure. 9. High cholesterol is a laboratory test result, and is not a disability for VA purposes. CONCLUSIONS OF LAW 1. The February 1986, December 1993, April 1994, November 1994, August 1995, March 2003, and April 2009 rating decisions are final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2015). 2. New and material evidence has been received sufficient to reopen the claim of service connection for a skin condition to include urticaria and tinea versicolor. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. New and material evidence has not been received since the RO's April 2009 rating decision with regard to the claim of service connection for diabetes mellitus, type II; thus, the claim of service connection for diabetes mellitus, type II is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 4. The criteria for service connection for prostate cancer, ischemic heart disease, high cholesterol and hypertension are not met. 38 U.S.C.A. §§ 1110, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Because the previously denied claim of service connection for a skin disorder to include urticaria and tinea versicolor is being reopened, any defect in VA's duty to notify the Veteran of how to substantiate his claim is harmless error. Regarding the claim for service connection for diabetes mellitus, by correspondence dated in December 2010, VA notified the Veteran of the information needed to substantiate and complete his claim, to include notice of the information that he was responsible for providing, the evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards. It is not alleged that notice was less than adequate. The notice also specifically indicated the need to submit new and material evidence to reopen his previously denied claims and the meaning of new and material evidence. See Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012); Kent v. Nicholson, 20 Vet. App. 1 (2006). Cf. VAOPGCPREC 6-2014 (Nov. 21, 2014) (case-specific notice is not required in claims to reopen). As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records for claim substantiation. The Veteran's service treatment records are associated with the record and pertinent private and VA medical records have been secured. The Board acknowledges that the Veteran has not been afforded a VA examination in connection with the current request to reopen. However, the duty to assist does not arise until new and material evidence sufficient to reopen a claim has been received. See 38 C.F.R. § 3.159(c)(4)(iii); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003) ("[I]n the absence of new and material evidence, VA is not required to provide assistance to a claimant attempting to reopen a previously disallowed claim, including providing a medical examination or obtaining a medical opinion."). Furthermore, the Board also acknowledges that the Veteran has not been afforded a VA examination in conjunction with his claims of service connection for prostate cancer, ischemic heart disease, high cholesterol or hypertension. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4)(i) (2015). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. Here, though, the only in-service event that the Veteran alleges is exposure to herbicides; and, as noted in more detail below, the evidence does not show that he was exposed to herbicides in service, and he is not entitled to the presumption of such exposure. The RO attempted to obtain evidence from the service department confirming exposure to herbicides in Vietnam, but the response was negative. See March 2011 VA memorandum. Moreover, as will be addressed below, high cholesterol is a laboratory finding and not a disability for VA compensation purposes. Therefore, he has not shown an in-service event, injury or disease or current disability with regard to high cholesterol that would trigger VA's duty to obtain an examination in conjunction with these claims. Remand for a VA examination is therefore not required. The appellant has not identified any pertinent evidence that remains outstanding with respect to these claims. VA's duties to notify and assist are met. It is also noted that the Veteran's representative submitted additional evidence in May 2015 and thereafter. Statements from the representative dated in May 2015 and January 2016 indicated that these documents should be considered in connection with the appeal. See 38 C.F.R. § 20.1304 (2015). Accordingly, remand is not required for consideration of these documents in the first instance by the AOJ. II. New and Material Evidence In a February 1986 rating decision, the RO denied entitlement to service connection for a skin condition based on a finding that no urticaria was shown on post-service examination and the Veteran's current tinea versicolor was in a different site than what was treated in service. The Veteran did not appeal that determination. In rating actions denying the Veteran's claim for service connection for a skin condition dated in December 1993, April 1994, November 1994, August 1995, March 2003 and April 2009, the RO found that new and material evidence had not been received to reopen the previously denied claim. The Veteran did not appeal these determinations. In a March 2003 rating decision, the RO denied entitlement to service connection for diabetes mellitus, type II based on a finding that no diabetes was treated or diagnosed in service or within the first post-service year, and there was no evidence that the Veteran was exposed to herbicides in service. The Veteran did not perfect an appeal of that determination. In an April 2009 rating decision, the RO denied the Veteran's claim of service connection for diabetes mellitus, type II because no new and material evidence was received to reopen the previously denied claim. The Veteran did not timely appeal that determination. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. The February 1986, December 1993, April 1994, November 1994, August 1995, and April 2009 rating decisions are final because the Veteran was provided with notice of the decisions and of his appellate rights but did not file a timely appeal or new and material evidence within one year of those decisions. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). Regarding the March 2003 rating decision which determined that new and material evidence had not been received to reopen the previously denied claim of service connection for a skin condition and denied service connection for diabetes mellitus, type II, the Veteran submitted a Notice of Disagreement with that decision in June 2003. The RO subsequently issued a statement of the case in December 2004, but the Veteran did not thereafter submit a timely VA Form 9, substantive appeal to the Board, or a timely statement indicating his intent to appeal in lieu of a VA Form 9. As such, the March 2003 rating decision became final. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a). When "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Skin As noted above, the Veteran's original claim of service connection for a skin rash was denied in a February 1986 rating decision because a January 1986 VA examination report found that the Veteran did not have urticaria during that examination, and the location of his tinea versicolor was on his neck, and not at the groin/thigh site that was treated during service. The Veteran did not appeal and that decision is final. The Veteran failed to reopen his claim as evidenced by unappealed rating decisions in December 1993, April 1994, November 1994, August 1995, March 2003 and April 2009. The relevant evidence of record at the time of the April 2009 rating decision included service treatment records and a VA examination report from January 1986. Other VA treatment records also show treatment for itching with a long history of such, but no evidence of a nexus to service. Since the April 2009 rating decision, additional evidence has been associated with the claims file, including the Veteran's lay statements and his December 2015 hearing testimony to the effect that the Veteran has had the urticaria and tinea versicolor since service, regardless of the location. Presuming the credibility of this evidence, it is new and material because it suggests that the Veteran may have a current chronic skin condition that had its onset in service. The evidence was not previously of record and raises a reasonable possibility of substantiating the claim of service connection for urticaria and tinea versicolor. As the new evidence addresses the reason for the prior denial, it is material and the claim may be reopened. The reopened claim is addressed in the REMAND which follows this decision. Diabetes Mellitus, type II The Veteran's original claim of service connection for diabetes mellitus, type II was denied in a March 2003 rating decision based on a finding that no diabetes was treated or diagnosed in service or within the first post-service year, and there was no evidence that the Veteran's diabetes was otherwise related to service; and, no evidence that the Veteran was exposed to herbicides in service. As discussed above, the Veteran did not perfect an appeal of that determination. In an April 2009 rating decision, the RO denied the Veteran's claim of service connection for diabetes mellitus, type II because no new and material evidence was received to reopen the previously denied claim. The Veteran did not timely appeal that determination. The March 2003 and April 2009 decisions are final. The relevant evidence of record at the time of the April 2009 included service treatment records and VA treatment records, as well as the Veteran's lay statements, including statements asserting that his diabetes is secondary to in-service Agent Orange exposure. The Veteran asserted that the brown water boats, and other equipment that was used in-country in Vietnam were brought aboard his ship, the USS Charleston, and that this how the Veteran was exposed to Agent Orange. The evidence also includes a November 2002 VA memorandum of a formal finding of an unavailability of evidence to establish that the Veteran had boots-on-the-ground service in the Republic of Vietnam. The evidence at the time of the April 2009 decision established that the Veteran has diabetes mellitus, type II, but there is no indication from these records that the disability began in service or is otherwise related to service. Since the April 2009 rating decision (the last final denial), additional evidence has been associated with the claims file, including more recent VA treatment records and additional lay statements, as well as his December 2015 video conference hearing testimony. This evidence shows that the Veteran continues to believe that his diabetes mellitus is secondary to Agent Orange exposure. The Veteran's December 2015 hearing testimony re-iterates the Veteran's claim that he was exposed to Agent Orange because of boats and other equipment that was brought aboard his Navy ship. This additional evidence consists of cumulative statements by the Veteran reiterating his assertions that the diabetes is due to Agent Orange exposure. Also, the additional evidence added to the record consists of new VA and private treatment records showing treatment for his current diabetes. These records are new because they have never before been associated with the claim; however, they are not material to the claim. The newly obtained evidence fails to show that the Veteran was exposed to Agent Orange during service, or that he served in the Republic of Vietnam during service. Likewise, the newly submitted evidence shows that the Veteran continues to receive treatment for diabetes, but does not, when considered with the other evidence of record, raise a reasonable possibility of substantiating the claim of service connection for diabetes mellitus. In short, the new evidence of record does not add any element that would potentially change the previous outcome. In other words, the newly submitted evidence is cumulative of evidence previously of record, that is, it is evidence showing a current disability of diabetes, and that the Veteran continues to be treated for the same. Likewise, the additional statements asserting exposure to Agent Orange during service are repetitive of statements already considered in the prior denial of the claim. Because the newly submitted evidence is not relevant to the claim, it is not material. The Federal Circuit Court found that evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it does not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). In addition, in the case of Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id., at 118. In other words, according to the current version of 38 C.F.R. § 3.156, the threshold for reopening a claim is relatively low, does not require a medical nexus opinion, and does not create a third element of new and material evidence, i.e., does not require the evidence be new, material, and raise a reasonable possibility of substantiating the claim. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. If there is newly submitted evidence of current disability which in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. This then triggers VA's duty to assist in providing the claimant with a VA examination. However, in this particular case at hand, there has not been any evidence, lay or medical, submitted which addresses the missing deficits present at the time the previously denied claims. The medical evidence added to the record since that time presents no new information relevant to the claim. Moreover, the Veteran's assertion is merely a repetitive statement of his previously submitted contentions. Thus, the Veteran's statements are cumulative and redundant of evidence previously of record. While other evidence of record added to the file since the prior denials may be new, it does not raise a reasonable possibility of substantiating the claim. As explained above, the new evidence shows that the Veteran continues to receive treatment for diabetes - but this only establishes that the Veteran has current diabetes, facts which were known at the time of the prior denials. The additional evidence added to the record does not provide any evidence that raises a reasonable possibility of showing that the Veteran has been exposed to Agent Orange, or that his diabetes is in any way related to service. Although the Veteran continues to argue that he was exposed to Agent Orange during service, these assertions were already of record at the time of the last prior denial. Merely making this same argument, again, is not new evidence. See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). In sum, new arguments based on what amounts to the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence. See Untalan v. Nicholson, 20 Vet. App. 467 (2006). Thus, all of the evidence, both lay and medical, received since the last prior denial is evidence that is cumulative, redundant of the evidence previously of record or it is irrelevant to the claims of service connection for diabetes and ED. The newly obtained evidence does not raise a reasonable possibility of substantiating the claim of service connection for diabetes mellitus, type II; therefore, new and material evidence has not been received since the RO's April 2009 decision became final; thus, the claim of service connection for diabetes mellitus, type II is not reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. III. Service Connection The Veteran seeks service connection for prostate cancer, ischemic heart disease, high cholesterol and hypertension. He asserts that these disabilities resulted from exposure to Agent Orange during service. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2013). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 ; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2015). These diseases include AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, all chronic B-cell leukemias, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, 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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2015). Notwithstanding the foregoing presumptive provisions, the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). Further, where the Veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As diabetes mellitus and cardiovascular-renal disease are each listed as a "chronic disease" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology and of 38 C.F.R. § 3.307 pertaining to presumptive service connection for chronic disease are potentially applicable to the issues of hypertension, and heart disease. The Veteran asserts that his prostate cancer, heart problems, hypertension and high cholesterol resulted from in-service exposure to herbicides. Specifically, he asserted at his December 2015 hearing that he was exposed to agent orange as a crew member of the USS Charleston (LKA-113) in the waters off the coast of Vietnam. He specifically denied going ashore in Vietnam, but he believes that his deck work as an equipment cleaner exposed him to residual Agent Orange. At his hearing, he testified that he was exposed to Agent Orange by scrubbing the deck of the ship and through scrubbing contaminants off of the boats that traveled in the brown waterways and other equipment coming from Vietnam. Regarding the claim of service connection for high cholesterol, the Board points out that hyperlipidemia and elevated cholesterol are laboratory findings and are not disabilities in and of themselves for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (noting that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities under the rating schedule). Hyperlipidemia is "a general term for elevated concentrations of any or all of the lipids in the plasma, such as hypertriglyceridemia, hypercholesterolemia, and so on." Dorland's Illustrated Medical Dictionary 883 (30th ed. 2003). In this case, the Veteran has also claimed service connection for heart disease, which, if present, may certainly have resulted from high cholesterol. However, as noted in greater detail below, service connection for heart disease is not warranted, and the Veteran has not identified any other current disability manifested by high cholesterol. Therefore, service connection for high cholesterol is not warranted. A review of the service treatment records reveals no complaints, treatment, or diagnoses of a heart condition, hypertension or prostate cancer. Current VA medical evidence documents diagnoses of hypertension and prostate cancer, along with claims of shortness of breath. With regard to granting service connection on a presumptive basis for prostate cancer and a heart condition to include hypertension, as related to in-service exposure to agent orange or herbicides, the Board notes that service in the Republic of Vietnam (RVN) includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the RVN. 38 U.S.C.A. § 101(29)(A); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2015); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009) (holding that a veteran must have actually set foot within the land borders of Vietnam or been present in the inland waters of Vietnam to be entitled to presumptive service connection). A November 2002 PIES 034 response indicates no evidence to substantiate any service in the RVN. Additionally, the Veteran specifically denied in-country service in Vietnam at his December 2015 Board hearing. With regard to the Veteran's assertions of being exposed to herbicides aboard the USS Charleston while cleaning equipment and brown water boats; i.e., while serving on a "blue water" ship, the VA Adjudication Procedures manual M21-1 addresses such claims. Specifically, M21-1, Part IV, Subpart ii, Chapter 2 states that exposure to herbicides is established on a presumptive basis if the evidence shows that the ship operated on the inland waterways of the RVN or docked to a pier or shore of the RVN, sent crew members ashore, the claimant was stationed aboard the ship at the time and the claimant provides a statement of personally going ashore, The Board again notes that there is no evidence, nor has the Veteran asserted, that he stepped foot onto the RVN. Further there is no evidence that the Veteran served on a ship that operated primarily or temporarily on the inland waterways of the RVN. Veterans who served in deep-water naval vessels off the coast of Vietnam during the Vietnam War are referred to as "Blue Water Navy Veterans," and there is no presumption of exposure to herbicides for such claimants. See Presumption of Exposure to Herbicides for Blue Water Navy Vietnam Veterans Not Supported, 77 Fed. Reg. 76170 (Dec. 26, 2012). Service on a deep-water vessel off the shores of Vietnam is not considered service in the RVN for purposes of 38 C.F.R. § 3.307(a)(6). VAOPGCPREC 27-97. Service aboard a ship that anchored in an open deep water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the RVN coast does not constitute inland waterway service or qualify as docking to the shore and is not sufficient to establish presumptive exposure to herbicides. Id. The Board notes that the Court's holding in a recent decision, with respect to Da Nang Harbor, that the manner in which VA has defined inland waterways is both inconsistent with the identified purpose of the statute (i.e., providing compensation to Veterans based on the likelihood of exposure to herbicides) and irrational. See Gray v. McDonald, 27 Vet. App. (2015). In so holding, the Court noted that it could not "discern any rhyme or reason in VA's determination that Quy Nhon Bay and Ganh Rai Bay are brown water[,] but Vung Tau Harbor-which appears to be inside Ganh Rai Bay-Da Nang Harbor, and Cam Ranh Bay are blue water." As such, it returned the matter to VA to "exercise its fair and considered judgment to define inland waterways in a manner consistent with the regulation's emphasis on the probability of exposure." Notably, the Court found that although "VA's definition of inland waterways [is] irrational and not entitled to deference, VA retains its discretionary authority to define the scope of the presumption. The Court declines to usurp the Agency's authority and impose its own line." Id. The Veteran does not assert, nor does the record suggest, that the Veteran's ship location fits into the definition of an inland waterway. Therefore, the Veteran's service aboard the USS Charleston does not reflect qualifying service because its location was not part of the inland waterways. Additionally, with regard to the Veteran's assertions regarding agent orange contamination from cleaning the deck of the USS Charleston and smaller, brown water boats and other equipment that came from Vietnam, there is no presumptive service connection for claims based on servicing or working on small boats or other equipment that may have come in contact with Agent Orange in Vietnam. Moreover, the evidence does not show that the Veteran is competent based on his education and training to relate that such equipment had agent orange contamination. The Veteran has not indicated that he witnessed the spraying of herbicides, and he is not competent to state that the boats and other equipment that he scrubbed aboard the USS Charleston were contaminated by herbicides. While the Veteran is certainly competent to report that he cleaned the boats and equipment, he does not have the scientific expertise to be able to distinguish tactical herbicide dust from any other type of dust, dirt or soot. Furthermore, the "brown water" presumption extends to those who served aboard brown water vessels because it is presumed that the vessel was a transport to land or that the boat was in close enough proximity to land to warrant a presumption of exposure, but the law and regulation do not presume that the boats themselves were contaminated. While the Veteran is not precluded from establishing exposure to Agent Orange on a direct basis, he has provided no medical or scientific evidence to support his lay assertions. While the Veteran sincerely believes that he was exposed to herbicides in service, there is no competent evidence of record to support his theory that the substances cleaned off of the boats and other equipment was Agent Orange or some other tactical herbicide. In sum, as there is no evidence to support the Veteran's assertions regarding in-service exposure to herbicides or herbicides through contaminated boats and equipment, such exposure is not presumed in the case at hand, and the Veteran's claims for service connection must fail on a presumptive basis in this regard. With regard to granting service connection on a direct basis, the Board notes that regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2015). Currently, there is no medical evidence linking current diagnoses of any of the claimed disabilities on appeal to the Veteran's military service. The Board has considered the Veteran's contentions that the claimed disabilities on appeal are related to herbicide exposure. However, the Board ultimately finds that the Veteran, as a layperson, is not capable of linking post-service diagnoses of a heart condition, hypertension, or prostate cancer to service. There is no indication in the claims file that he has medical training or expertise which would render him competent to make such links. Moreover, the Veteran does not assert that his heart condition, hypertension, or prostate cancer developed during service. Therefore, with no medical evidence or competent lay evidence linking these disabilities to service and no lay evidence reporting a continuity of symptomatology since service pertaining to these disabilities, the Veteran's claims for service connection for hypertension, a heart disability and prostate cancer must fail on direct bases. With regard to granting service connection for presumptive diseases under 38 C.F.R. § 3.309(a), there is no evidence of record reflecting that the Veteran manifested hypertension, a heart condition of any kind or prostate cancer to a compensable degree within one year of discharge from active duty. Moreover, as noted above, the Veteran has never asserted such. As such, service connection cannot be granted for these disabilities on a presumptive basis under 38 C.F.R. § 3.309(a). As the preponderance of the evidence is against these claims, the benefit-of-the-doubt rule does not apply, and the claims for service connection for hypertension, a heart disability and prostate cancer must be denied. See 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the petition to reopen the previously denied claim of service connection for a skin disorder, to include urticaria and tinea versicolor, is granted, but to that extent only. New and material evidence having not been received, the petition to reopen the previously denied claim of service connection for diabetes mellitus, type II, is denied. Service connection for ischemic heart disease is denied. Service connection for hypertension is denied. Service connection for prostate cancer is denied. Service connection for high cholesterol is denied. REMAND The Veteran seeks service connection for a skin disorder. The Veteran's service treatment records show that he was treated for urticaria and tinea versicolor during service. The Veteran's original claim of service connection was denied in a February 1986 rating decision because urticaria was not present at the time of a January 1986 VA examination; and, because the Veteran presented with tinea versicolor on his neck but not on his groin or thigh - the location noted in the service treatment records. The record further reflects that the Veteran reports subsequently he has experienced bouts or urticaria and continues to use medication for ongoing tinea versicolor. The Veteran maintains that his tinea versicolor recurs in his groin and thigh area, the same location as was noted in service. Finally, the Veteran has more recently asserted that he has chloracne, which began during service. Given the service treatment records showing in-service treatment for a skin rash/urticaria/tinea versicolor, as well as the Veteran's reports of continuity of symptoms since service, a VA examination is necessary to determine whether any relationship exists between any current skin disability and service. McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4)(i) (2015). Since the matter is remanded, the electronic record should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Regarding the claim to reopen a previously denied claim of service connection for sexual/erectile dysfunction, the Veteran asserted, in a November 2003 statement, that his sexual/erectile dysfunction was due to his urticaria and tinea versicolor. This is a different theory of entitlement to service connection that has not been considered, and it is inextricably intertwined with the reopened claim of service connection for a skin condition to include urticaria, tinea versicolor and chloracne. Thus, the matter must be deferred pending the outcome of the other claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran's skin condition(s), including but not limited to recurrent urticaria and tinea versicolor, and whether the Veteran has a current diagnosis of chloracne. The electronic claims file, to include the Veteran's service treatment records, VA records and statements, must be reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the electronic claims file and examining the Veteran, the examiner should opine whether it is at least as likely as not (a fifty percent probability or greater) that any of the Veteran's skin condition(s), to include recurrent urticaria and/or tinea versicolor, is related to his active duty service? The examiner should also address whether the Veteran has chloracne. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. After the development directed above has been completed, readjudicate the issues on appeal of service connection for erectile dysfunction and a skin disorder to include urticaria, tinea versicolor and chloracne. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs