Citation Nr: 1642106 Decision Date: 11/01/16 Archive Date: 11/18/16 DOCKET NO. 09-37 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for gout, characterized by joint symptomatology in the feet, to include as due to asbestos, toxic chemical, and herbicide exposure. 2. Entitlement to service connection for arthritis of the right shoulder, to include as due to asbestos, toxic chemical, and herbicide exposure, and as secondary to gout and/or diabetes mellitus. 3. Entitlement to service connection for a low back disorder, to include as due to asbestos, toxic chemical, and herbicide exposure, and as secondary to gout and/or diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1969. This appeal is before the Board of Veterans' Appeals (Board) from January 2009 and August 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The January 2009 rating decision denied, in pertinent part, service connection for arthritis of the right shoulder and arthritis of the back. The August 2009 rating decision denied, in pertinent part, service connection for gout. The Veteran testified before a Veterans Law Judge (VLJ) at a March 2013 videoconference hearing, and a transcript of this hearing is of record. The VLJ who heard testimony at the original hearing is no longer employed by the Board. In September 2015, the Veteran was notified of such and afforded the opportunity for another hearing pursuant to 38 C.F.R. § 20.707 (2015). Soon thereafter, the Veteran responded that he did not wish to appear at another Board hearing. See VBMS, 9/21/15 Hearing Request. All issues were previously remanded by the Board in June 2013 and again in November 2015 for further evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). In this case, the AOJ substantially complied with the Board's most recent November 2015 remand instructions by obtaining updated VA treatment records; providing VA examinations of the Veteran's low back disorder, right shoulder disorder, and gout; and readjudicating the claims in a January 2016 Supplemental Statement of the Case. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran has a current diagnosis of gout that was incurred in or resulted from active duty service. 2. The Veteran's arthritis of the right shoulder is not caused by service or any service-connected disorder, and was not worsened beyond its normal progression due to any service-connected disability. 3. The Veteran's low back disorder is not caused by service or any service-connected disorder, and was not worsened beyond its normal progression due to any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for gout have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015). 2. The criteria for service connection for arthritis of the right shoulder, to include as secondary to gout or diabetes mellitus and due to asbestos, toxic chemical, or herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2015). 3. The criteria for service connection for a low back disorder, to include as secondary to gout or diabetes mellitus and due to asbestos, toxic chemical, or herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). VA's duty to notify was satisfied by letters on July 23, 2007, and, pursuant to the June 2013 Board remand, on June 6, 2013. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, identified private treatment records, and Social Security Administration (SSA) records have been obtained. Also, the Veteran was provided VA examinations of his gout, right shoulder, and low back in June 2013 and December 2015. These examinations and their associated reports are adequate. Along with the other evidence of record, they provided sufficient information and a sound basis for a decision on the Veteran's claim. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Veterans Court) held that 38 C.F.R. § 3.103(c)(2) (2015) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the March 2013 Board hearing, the VLJ fully explained the issues on appeal, and asked questions focused on the nature and etiology of the disabilities in question. The Veteran was assisted at the hearing by an accredited representative from the American Legion. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims files that might have been overlooked, or was outstanding, that might substantiate the claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection A. Applicable Law Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Veterans Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). While the disease need not be diagnosed within the presumption 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. Id. As arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic disease" in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, VA has established a presumption of herbicide exposure applicable to Veterans who served in Republic of Vietnam during the Vietnam War. Specifically, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld the VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring proof of some duty or visitation onshore in Vietnam. Service on a deep-water vessel off the shores of Vietnam is generally not considered service in the Republic of Vietnam for purposes of 38 C.F.R. § 3.307(a)(6). VAOPGCPREC 27-97. 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). It is reiterated that service in the waters offshore Vietnam is only qualifying service if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Service on a deep-water naval vessel off the shores of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A), unless evidence shows that a Veteran went ashore. VAOPGCPREC 27-97. VA General Counsel opinions are binding on the Board. See 38 U.S.C.A. § 7104(c) (West 2014); 38 C.F.R. § 14.507 (2015). Since issuance of the above-cited General Counsel opinion, VA has reiterated its position that service in deep-water naval vessels offshore of Vietnam (as opposed to service aboard vessels in inland waterways of Vietnam) is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases. See comments section in Federal Register announcement of final rule adding diabetes to the list of Agent Orange presumptive diseases, 66 Fed. Reg. 23166 (May 8, 2001). Although "inland waterways" are not defined in VA regulations, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR, IV.ii.1.H.2.a., d. Service aboard a ship that anchored temporarily in an open deep water harbor or port is not sufficient. See VBA Manual M21-1, IV.ii.2.C.3.m. Open water ports, such as Da Nang, Cam Ranh Bay, and Vung Tu, are considered extensions of ocean waters and not inland waterways. Id. In Gray v. McDonald, 27 Vet. App. 313 (2015), VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) was found to be arbitrary and capricious insofar as it designates Da Nang Harbor as offshore waters rather than an inland waterway without providing a principled reason for that designation. A recent amendment to the VA's Adjudication Procedure Manual classifies inland waterways as fresh water rivers, streams, and canals, and similar waterways. VBA Manual M21-1, IV.ii.1.H.2.a. Because these waterways are distinct from ocean waters and related coastal features, service on these waterways is considered service in the Republic of Vietnam. VA considers inland waterways to end at their mouth or junction to other offshore water features. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. See VBA Manual M21-1, IV.ii.1.H.2.a.; see also VBA Manual M21-1, IV.ii.2.C.3.m. Offshore waters are the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. This includes salty and brackish waters situated between rivers and the open ocean. VBA Manual M21-1, IV.ii.1.H.2.b. Certain diseases are deemed associated with herbicide exposure under VA law and shall be service-connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The Board notes that VA was unable to determine whether the Veteran had any in-country service. See VBMS, 10/12/07 VA 21-3101 (Vietnam in-country svc). However, the Board finds that such herbicide exposure for presumptive service connection purposes is not relevant as the claimed disorders are not on the list of diseases subject to presumptive service connection based on herbicide exposure. See 38 C.F.R. § 3.309(e). Even if the Veteran does not fall with in the class of service members afforded the herbicide presumptions under 38 C.F.R. §§ 3.307(a)(6) and 3.309(e), he can still show that he was actually exposed to herbicides, and that a disorder resulting in disability or death was in fact causally linked to this herbicide exposure. See Combee v. Brown, 5 Vet. App. 248 (1993). Furthermore, regarding the Veteran's assertion that his disorders are related to in-service asbestos exposure, there is no specific statutory guidance with regard to asbestos-related claims, nor has VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C). See also VAOPGCPREC 4-00. The guidelines provide that the latency period for asbestos-related diseases varies from 10 to 45 years or more between first exposure and development of disease. It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The Veterans Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial fibrosis, or asbestosis); tumors; pleural effusions and fibrosis; pleural plaques; and cancers of the lung, bronchus, larynx, pharynx and urogenital system (except the prostate). M21-1MR, IV.ii.2.C.9.b. Specific effects of exposure to asbestos include lung cancer, gastrointestinal cancer, urogenital cancer, and mesothelioma. Disease-causing exposure to asbestos may be brief and/or indirect. Current smokers who have been exposed to asbestos face greater risk of developing bronchial cancer, but mesotheliomas are not associated with cigarette smoking. M21-1MR, IV.ii.2.C.9.c. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Veterans Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1 MR, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos-related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In this case, the Veteran is claiming arthritis of the right shoulder and low back, which is not an asbestos-related disease and is further discussed below. Moreover, the Veteran submitted articles and other materials which address the storage of radioactive materials at Hunters Point. A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty, participated in a radiation-risk activity. The term "radiation risk activity" has a specific meaning. It means (1) onsite participation in a test involving the atmospheric detonation of a nuclear device; (2) participation in the postwar occupation of Hiroshima or Nagasaki, Japan, during the period August 1945 to July 1946; (3) internment as a prisoner of war in Japan or service on active duty in Japan immediately following such internment immediately after World War II that resulted in an opportunity for exposure to ionizing radiation comparable to that of United States occupation forces in Hiroshima or Nagasaki during the period August 1945 to July 1946; (4) service in which the service member was, as part of his or her duties, present during a total of at least 250 days before February 1, 1992, on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee, under certain conditions; service before January 1, 1974, on Amchitka Island, Alaska, or during such period the veteran was exposed to ionizing radiation related to underground nuclear tests; or (5) service in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under the Energy Employees Occupational Illness Compensation Program. 38 C.F.R. § 3.309 (d)(3)(i)(D). The Veteran does not contend that he participated in any of the activities specified as radiation risk activities and thus does not met the definition of a "radiation-exposed veteran." As such, the service connection presumption of radiation-exposed veterans does not apply. See 38 C.F.R. § 3.309(d). Finally, service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Any increase in the severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disability, will be itself service-connected. 38 C.F.R. § 3.310(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. B. Facts The Veteran's personnel records reflect that he was stationed on the U.S.S. Oriskany (CVA 34) from December 1966 to August 1969. The Veteran contends that he was exposed to sea air, moisture, and asbestos on the U.S.S. Oriskany for approximately three years, where he was also exposed to jet fuel and jet fumes. See VBMS, 7/6/07 Application. See also Virtual VA, 5/18/13 Hearing Transcript. Further, he alleges that he was exposed to toxic chemicals and radiation while stationed at Hunters Point Naval Shipyard, where he was assigned as fire watchman for four months while repairs were made to the ship. See VBMS, 6/4/09 Statement in Support of Claim. Specifically, he states that he was exposed to welding fumes, lead paint fumes, asbestos dust, various particulates, and various harmful fumes. Regarding his right shoulder and low back disorders, in addition to contending direct service connection due to in-service exposure to toxic chemicals and fumes, the Veteran contends that they were aggravated by gout and/or diabetes mellitus. The Veteran submitted various articles reflecting the effects of such exposure, including buildings at Hunters Point being used to store radioactive operations and materials in 1946 until 1969, which emitted radioactivity that could lead to cancer; that lead toxicity might affect any organ in the body, including arthritis and gout; that the contamination of the environment in Guam for decades might have contaminated the air, water, and food and thus could produce diseases including arthritis and gout; that lead-based paints were used on seagoing vessels; and that many welders who worked with metallic lead or lead-coated materials might be at greater risk for lead intoxication than abrasive blasters. At his March 2013 Board hearing, the Veteran acknowledged that he did not have any treatment for his right shoulder, low back, or gout during service. However, he contends that manifestations of gout arose within one year from separation from active duty service. In an April 2009 statement, he reported that he first received treatment for gout in December 1969; however, the office where he received treatment was no longer in existence, the doctors were now deceased, and he could not locate his treatment records. He noted that he had several attacks after the initial gout attack, that he received treatment for the second time in June 1970, that that office also no longer existed, and that his gout began being documented in January 1972. Service treatment records do not include any complaints of, treatments for, or diagnoses of gout or arthritis. In fact, the Veteran's August 1969 separation examination report reflects normal clinical evaluation for feet, spine, and upper extremities. See VBMS, 12/4/15 STR, p. 5. Private treatment records from January 1972 to January 1996 reflect treatment of the Veteran's gout. A January 1972 private treatment record reflects complaints of pain and swelling involving the left big toe and extending to the dorsum of the left foot, which the Veteran stated occurred about two days prior; and an elevated uric acid level of 10.6 mg/dl. He noted that he had a similar episode about a year and a half ago where he was told that he had gout. See VBMS, 4/9/13 Private Treatment Record, p. 2. The Veteran continued to seek treatment for gout with an elevated uric acid level of 11.6 mg/dl in December 1973; an acute gouty attack with swelling, redness, and inflammation of the right great toe in January 1974; another gouty attack with swelling and pain in the right thumb in July 1987; an elevated uric acid level of 12.4 mg/dl, which was outside the reference range, in October 1992; and uric acid levels within the reference range in March 1995, May 1995, and January 1996. See id.; VBMS, 8/7/09 Private Treatment Records, p. 2; 3/24/08 Private Treatment Records, p. 37, 50; 3/24/08 Private Treatment Records (19 pages), p. 3, 5, 10. A January 1980 private treatment record referenced review of the Veteran's chart, which reflected a 10-year history of gout. See 4/9/13 Private Treatment Record at 1. VA treatment records from January 2001 to May 2010 reflect that the Veteran reported a history of gout, which had been under control with allopurinol; resumed taking allopurinol daily after he decreased use to every other day and had a gout attack; was subsequently assessed with gout with no recent gout attacks; and had a uric acid level of 6.4 mg/dl in May 2010, which was within the reference range. See 12/4/15 CAPRI, p. 262; 1/9/09 VA Treatment Records, p. 1, 4, 6; 8/13/09 VA Treatment Records, p. 4, 6; 9/16/10 VA Treatment Records, p. 37, 41; 1/13/11 VA Treatment Records, p. 3. An August 2003 VA treatment record also noted that right shoulder pain was still present. See 1/9/09 VA Treatment Records at 1. A July 2010 private treatment record reflects an old history of gout with occasional breakthrough attacks, which was being controlled for some time with allopurinol; and a normal uric acid level of 6.2 mg/dl. See 11/3/10 Private Treatment Records, p. 4. The Veteran complained of pain in the bilateral shoulders and upper and low back and into the right hip; reported that he had done well with the exception of fairly severe polyarthralgias in the cervical, thoracic, and lumbar spine; and noted trouble for many years in these areas, most severely in the shoulders and mid-thoracic spine. Based on x-ray evidence, he was assessed with fairly significant osteoarthritis of the cervical and thoracic spine with less involvement of the lumbar spine. See id. at 3. A September 2010 follow-up examination report reflects a physical examination within normal limits, and assessments of cervical degenerative joint disease (DJD), thoracic DJD, and gout. See id. at 1-2. SSA records reflect the Veteran was treated for osteoarthritis and degenerative disc disease (DDD); had a history of gout, which was treated by medication; had neck and right shoulder pain with no trauma or injury; spondylosis and sacroiliacitis of the lumbar spine; and physical therapy from July 2010 to September 2010 for his back pain. An October 2010 Physical Residual Functional Capacity Assessment Form reflects moderate spondylosis and curvature with sacroiliacitis of the lumbar spine, and notable diffuse idiopathic skeletal hyperostosis of the thoracic spine. See VBMS, 11/30/10 SSA Records, p. 15, 28, 59. VA treatment records from April 2012 and January 2013 reflect allopurinol for gout on the active medication list and assessments of gout with no recent gout attacks. See 12/4/15 CAPRI at 136, 140. A June 2013 x-ray of the right shoulder reflects no evidence of bone or joint abnormality. See VBMS, 1/6/16 CAPRI, p. 127. A July 2013 VA examination report by an orthopedic surgeon indicates review of the Veteran's claims file, recounts his history, and recites his complaints. The Veteran reported right shoulder pain since 1995 with no treatment, and a gradual onset of low back pain beginning about 10 years ago, which would have been 2003. He complained of pain primarily in the tailbone and pain in the upper lumbar and lower thoracic spine, as well as right shoulder pain that bothered him more than the left side. The VA examiner diagnosed the Veteran with chronic lumbar spurring with x-ray evidence of mild cervical, thoracic, and lumbar spondylosis, and stated that he found no evidence from review of the x-rays that the Veteran's low back condition was related to any metabolic condition such as gout. Rather, based upon the Veteran's history and physical examination, he opined that it was more likely than not that the Veteran's spinal conditions were related to aging and had no etiologic relationship to his military service. The VA examiner also diagnosed the Veteran with bilateral shoulder impingement syndrome with mild arthritis of the acromioclavicular joints, based on x-ray evidence. He stated that there was no evidence that the Veteran's shoulder conditions were the result of gout as the onset was well after separation. As such, he opined that it was less likely than not that there was any relationship between the Veteran's right shoulder arthritis and his military career. The July 2013 VA examiner also evaluated the Veteran's gout, although he stated that an evaluation of gout and its etiology was beyond the area of expertise of any orthopedic surgeon. However, he did note that the Veteran reported an onset of pain, considered to be gout, in December 1969 with intermittent flare-ups of pain in each great toe and treatment with colchicine; and current flare-ups involving the left ankle, which he treated with allopurinol. X-rays showed prominent calcaneal spur in the left foot, and hallux valgus deformity and calcaneal spur in the right foot. See 1/6/16 CAPRI at 125. The VA examiner diagnosed the Veteran with bilateral plantar fascia fibromas, which he stated were asymptomatic, required no treatment, and had been present for an undetermined period of time. He stated that there was no indication that they were related to gout or any other systemic disease. He also diagnosed the Veteran with arthritis of the left great toe, which was less likely than not related to gout in that there was no bone destruction with motion and no pain. VA treatment records from August 2013 to December 2015 reflect the use of allopurinol to treat gout; assessments of gout with no recent gout attacks; reports of mild, tolerable arthritic pain; and complaints of right shoulder pain on and off for a few months and some occasional low back pain. See 12/4/15 CAPRI at 19, 26, 30, 58, 84, 91, 93; 1/6/16 CAPRI at 27. A December 2015 VA examination report, consisting of a Disability Benefit Questionnaire (DBQ) for Non-Degenerative Arthritis, indicates review of the Veteran's claims file, recounts his history, and recites his complaints. The VA examiner noted normal uric acid levels since November 2000, no evidence of gouty changes on joints, and no history of acute gout attacks in the past 15 years. As such, although the Veteran reported a history of gout, the VA examiner stated that there was no clinical, laboratory, or imaging evidence of gout in the feet, low back, or shoulders. After reviewing the conflicting medical evidence, the VA examiner concluded that the Veteran had self-reported the diagnosis of gout upon first seeking VA treatment in 2000, was prescribed allopurinol without clinical or laboratory evidence of elevated uric acid levels in 2000, and inclusion in the problem list in 2000 had not been corrected despite negative imaging and normal uric acid levels. Furthermore, he noted no visits or evidence of any gouty attacks since receiving VA treatment in 2000, which made the conflicting evidence less likely to be correct. The December 2015 VA examiner also completed the Back (Thoracolumbar Spine) Conditions DBQ, which reflected a diagnosis of degenerative arthritis of the lumbar spine as of June 2013; and Shoulder and Arm Conditions DBQ, which reflected a diagnosis of degenerative arthritis of the bilateral shoulders as of 2015. He noted the Veteran's contention that his low back and right shoulder conditions were due to gout, beginning in 1999 or 2000; a mildly abnormal back examination; an abnormal bilateral shoulder examination with x-ray evidence of mild degenerative arthritis; and no signs of gouty arthritis on examination or imaging. The VA examiner opined that the degenerative changes in the lumbar spine and shoulders were most likely due to chronic joint stress from occupational activities after separation from service to the present, specifically occupational stress on the joints from moving furniture for 13 years and then repairing furniture until eight years ago. He found that the right shoulder and low back disorders were less likely than not incurred in or caused by active duty service, and were less likely than not proximately due to or the result of the Veteran's gout. The Veteran submitted lay statements from his wife, mother-in-law, and former supervisor stating that he had had gouty arthritis since the first month of discharge in late 1969, at which time the Veteran had quite a few flare-ups due to illness and which caused him to miss work as a result. His former supervisor also stated that the Veteran was still affected with gout today. See VBMS, 2/11/08 Buddy/Lay Statement; 6/16/10 Buddy/Lay Statement. C. Gout Based on a review of all of the evidence of record, lay and medical, the Board finds that the evidence weighs against finding in favor of the Veteran's service connection claim for gout as there is no evidence of a current chronic disability. See Brammer, 3 Vet. App. at 225. Private treatment records reflect that the Veteran received treatment for gout in January 1972 with a reference to a history of gout arguably since 1970. However, the last time the Veteran had elevated uric acid levels was in October 1992, and the December 2015 VA examiner found no clinical, laboratory, or imaging evidence of current gout in the feet, low back, or shoulders. The VA examiner resolved the conflicting medical evidence by stating that it was less likely to be correct, given the Veteran's self-reported history of gout upon first seeking VA treatment in 2000, lack of clinical or laboratory evidence of elevated uric acid levels since 2000, negative imaging, and no visits or evidence of any gouty attacks since receiving VA treatment in 2000. As such, he found that the continued assessments of gout in the Veteran's VA treatment records were incorrect and purely based on the Veteran's self-reported diagnosis and history of gout, rather than objective imaging or laboratory findings. The Board acknowledges the Veteran's contentions that he suffers from gout and the lay statements provided by his wife, mother-in-law, and former supervisor. However, there is no indication that they are medical professionals or have any medical expertise. Therefore, as lay people, they do not have the requisite medical knowledge, training, or experience to be able to provide a diagnosis of gout. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). Under the circumstances of this case, the determination of the nature or etiology of gout involves medically complex disease processes because of multiple possible etiologies, and manifest symptomatology that may overlap with other disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, the Veteran, his wife, his mother-in-law, and his former supervisor are not competent to provide a diagnosis of gout. As there is no competent evidence of a current diagnosis or treatment of gout, the Board finds that the weight of the evidence demonstrates no current diagnosis of gout. As such, despite treatment and diagnosis of gout after separation from service, there is no evidence of a current disability and, thus, no valid service-connection claim under direct service connection or under the chronic disease presumption. See Brammer, 3 Vet. App. at 225; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As the preponderance of the evidence shows that the Veteran does not have a current diagnosis of gout, the benefit-of-the-doubt rule does not apply, and service connection for gout must be denied. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55. D. Right Shoulder and Low Back Disorders The Veteran contends that his right shoulder and low back disorders are due to and aggravated by his gout and/or diabetes mellitus. As such, the Board will first address his claims for service connection for arthritis of the right shoulder and of the low back on a secondary basis. The claims of entitlement to service connection for arthritis of the right shoulder and low back are inherently based on entitlement to compensation for gout and diabetes mellitus. Service connection for gout has been denied herein. Service connection for diabetes mellitus was denied in the August 2009 rating decision. Accordingly, as compensation for gout or diabetes mellitus is not warranted, there is no legal basis for a grant of service connection for arthritis of the right shoulder or of the low back as proximately due to or a result of gout or diabetes mellitus. Although the Veteran specifically contends secondary service connection, he also raises service connection on a direct basis, specifically based on in-service exposure to asbestos, toxic chemicals, and fumes. Exposure to in-service herbicides has also been raised by the Board in its June 2013 remand, and will thus be discussed below. As an initial matter, the record substantiates current diagnoses of osteoarthritis of the thoracic and lumbar spine since July 2010 and of arthritis of the acromioclavicular joints (shoulders) since June 2013. These diagnoses were made 41 and 44 years, respectively, after separation from service. As such, the chronic disease presumption does not apply as they did not manifest within a year from separation from active duty service. See 38 C.F.R. § 3.307(a)(3), 3.309(a). Furthermore, there is no evidence of chronicity of symptomatology during service or of continuity of symptomatology after separation as the first evidence of a low back problem was in July 2010 and the first issue of right shoulder pain was in August 2003. See 38 C.F.R. § 3.303(b). As noted above, service connection on the basis of presumed herbicide exposure must be denied as arthritis is not in the list of diseases deemed associated with herbicide exposure under VA law. However, the Veteran can still show that he was actually exposed to herbicides and that a disorder resulting in disability or death was in fact causally linked to this herbicide exposure. See Combee, 5 Vet. App. at 248. Unfortunately, VA was unable to determine whether the Veteran had any in-country service. However, a document compiled for the VA entitled "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents" contains a list of ships that operated primarily or temporarily on Vietnam's inland waterways, ships that docked to the shore or pier in Vietnam, and ships that operated on Vietnam's close coastal waters for extended periods of time with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel. The U.S.S. Oriskany is not on this list, nor is there any evidence that it operated on any inland waterways. Therefore, the Veteran is not considered to have in-country service for purposes of 38 C.F.R. § 3.307(a)(6). VAPGCPREC 27-97. Additionally, the Veteran has not provided any details or explanations as to the circumstances of any duty or visitation onshore in Vietnam or actual contact with herbicides. Furthermore, the Joint Services Records Research Center (JSRRC) reviewed numerous official military documents, ship logs and other sources of information pertaining to Navy and Coast Guard ships and the use of tactical herbicides in the Vietnam era, and found no evidence that those ships transported tactical herbicides to the Republic of Vietnam or that ships operating off the coasts of Vietnam used, stored, tested, or transported herbicides. See VBMS, 5/1/09 VA Memo; 2/17/11 VA Memo. As such, the preponderance of the evidence does not demonstrate any actual herbicide exposure during service. Regardless, there is no credible or competent lay or medical evidence that the Veteran's current right shoulder and low back disorders are caused by actual exposure to toxic chemicals, herbicides, and fumes during service. In fact, the July 2013 VA examiner opined that the Veteran's low back arthritis was due to aging. Additionally, the December 2015 VA examiner opined that the Veteran's right shoulder and low back arthritis were less likely than not incurred in or caused by active duty service, but rather were most likely due to chronic joint stress from occupational activities after separation from service to the present, specifically from moving and repairing furniture for almost 40 years after separation from service. While acknowledging the Veteran's contentions that he was exposed to jet fuel and jet fumes while stationed on the U.S.S. Oriskany, the Board finds that his contention that his arthritis was caused by general exposure to such jet fuel and fumes, from merely being present on an aircraft carrier, is speculative and is an assumption with no basis. The Veteran does not provide any details of such exposure as to when, how often, how much, etc., especially given his military occupational specialty as a storekeeper. Under the circumstances of this case the Veteran's contentions relating to the exposure are to general and vague for the purpose of establishing any requirement of service connection. See generally Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (A layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). Furthermore, the Veteran is not competent to determine the nature or etiology of his arthritis, as it involves medically complex disease processes because of multiple possible etiologies, and manifest symptomatology that may overlap with other disorders. See Woehlaert, 21 Vet. App. at 462. In any case, the Veteran's lay assertions are outweighed by the competent and credible VA medical opinion to the contrary, which is discussed above and which considered the Veteran's assertions. The Veteran also stated that he was exposed to toxic chemicals and radiation when assigned for four months as a fire watchman at Hunters Point Naval Shipyard. He submitted articles discussing aircraft carriers, shipyards, and the chemical hazards of such. However, such general articles cannot be considered to be probative as they do not discuss his specific circumstances. In fact, the articles refer to possibilities that arthritis "may" be affected by lead toxicity, that welders who work with metallic lead or lead-coated materials "may be at greater risk" for lead intoxication, that decades of contamination with toxic chemicals "could" produce diseases such as arthritis, and that radioactivity emitted by radioactive materials used at Hunters Point Shipyard "could" lead to cancer. However, not only do these articles refer generally to possible consequences, but the Veteran was never found to have or treated for lead intoxication or lead toxicity, was not exposed to any chemical or fumes for a period of decades, and was never diagnosed with cancer. As such, these contentions are also purely speculative and without any bases. Finally, the Veteran also contends that he was exposed to asbestos while he was on the U.S.S. Oriskany for approximately three years, and to asbestos dust while the ship was in drydock. As stated above, there is no presumption of exposure to asbestos. Therefore, evidence of a relationship between the asbestos related disease and alleged asbestos exposure in service is required. See VA O.G.C. Prec. Op. No. 04-00. However, there is no evidence of any such relationship here. In this case, the Veteran is claiming arthritis of the right shoulder and low back, which is not an asbestos-related disease. See M21-1MR, IV.ii.2.C.9.b.-c. As such, even if asbestos exposure were found, there is no evidence other than the Veteran's assertion that links his arthritis to the alleged asbestos exposure. Although lay persons are competent to provide opinions on some medical issues, establishing the etiology of arthritis, and linking such a diagnosis to asbestos exposure, falls outside the realm of common knowledge of a lay person. Therefore, even if he was actually exposed to asbestos, there has been no competent or credible lay or medical evidence submitted that suggests a connection between his arthritis and such exposure. In sum, because the Veteran is not presumed to have been exposed to herbicides during service in Vietnam, and because there is no credible evidence of actual exposure to toxic chemical or fumes or herbicides, his claims for service connection for arthritis of the right shoulder and low back due to asbestos, toxic chemical, and herbicide exposure must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for gout, characterized by joint symptomatology in the feet, to include as due to asbestos, toxic chemical, and herbicide exposure, is denied. Entitlement to service connection for arthritis of the right shoulder, to include as due to asbestos, toxic chemical, and herbicide exposure and as secondary to gout and/or diabetes mellitus, is denied. Entitlement to service connection for low back disorder, to include as due to asbestos, toxic chemical, and herbicide exposure and as secondary to gout and/or diabetes mellitus, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs