Citation Nr: 1752043 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-36 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for ischemic heart disease (IHD) to include as a result of herbicide exposure. 2. Entitlement to service connection for cardiomyopathy to include as a result of herbicide exposure. 3. Entitlement to service connection for penile sarcoma (soft tissue sarcoma) to include as a result of herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to July 1981, and had additional service with the Massachusetts Army National Guard (ANG) from July 1981 until January 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In June 2016, the Board remanded the Veteran's claim for further evidentiary development and readjudication. Further development in substantial compliance with the Board's remand instructions has been completed. The Veteran's appeal has now been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. The Veteran is not presumed to have been exposed to herbicides during his Army or Army National Guard naval service. 2. The weight of the evidence is against a finding that the Veteran's ischemic heart disease was due to or the result of his active service. 3. The weight of the evidence is against a finding that the Veteran's cardiomyopathy was due to or the result of his active service. 4. The weight of the evidence is against a finding that the Veteran's penile sarcoma was due to or the result of his active service. CONCLUSION OF LAW 1. The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for cardiomyopathy have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for service connection for penile sarcoma have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), and private treatment records have been obtained. Service personnel records are also of record. Additionally, the Veteran testified at a Board hearing. The transcript of the hearing is associated with the Veteran's claim file. While a VA medical opinion was not provided in this case, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). Ultimately, the outcome of this appeal turns on the question of whether it can be shown that the Veteran was exposed to herbicides during his time on active duty for training, which would trigger a presumption of service connection for IHD, cardiomyopathy and soft tissue sarcoma, and would obviate the need to conduct an examination based on such exposure. Unfortunately, as is explained below, the Board at this time cannot conclude that the evidence of record supports the Veteran being actually exposed to herbicide agents during his time on active duty for training. No medical opinion of record has been advanced suggesting that the disabilities for which the Veteran is pursuing service connection were related to service, except as a result of exposure to herbicide agents. As such, the duty to assist does not include obtaining a VA examination in this case. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection The Veteran claims that he developed IHD, cardiomyopathy, and soft tissue sarcoma as the result of being exposed to herbicides while on active duty for training with the Army National Guard at the Canadian Forces Base in Gagetown, New Brunswick, Canada. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from 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, 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. If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, certain enumerated diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). Of note, any period of service is sufficient for the purpose of establishing the presumptive service connection of a specified disease under the conditions listed in §3.309(e). 38 C.F.R. § 3.307(a)(1). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including cardiomyopathy, ischemic heart disease, and soft tissue sarcoma, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran did not serve in the Republic of Vietnam and there is no assertion to the contrary. Nevertheless, a Veteran may show that he was exposed to herbicide agents outside of Vietnam while in service. See 38 U.S.C.A. § 1116 ; 38 C.F.R. § 3.307 (a)(6). VA has developed specific procedures to determine whether a Veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o) directs that the Veteran be asked for the approximate dates, location, and nature of the alleged exposure. If a statement is received from the Veteran, this detailed statement of the Veteran's claimed herbicide exposure must be sent to the Compensation and Pension Service via e-mail and a review be requested of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used or tested as alleged. If the exposure is not verified, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. During his time in service, the Veteran's DD-214 indicates that he served as a cadet at West Point from July 1979 to July 1981. The record also indicates that the Veteran served in the Massachusetts Army National Guard (ANG) from 1981 until 1998. The Veteran testified that during his service in ANG, he was deployed for two separate training sessions to New Brunswick, Canada. The Veteran stated that he was in Canada during either 1982 and 1984 or 1983 and 1986. Furthermore, the Veteran believes herbicide agents were sprayed prior to his service in Canada and that he was constantly chest deep in rivers, ponds or lakes, thus exposed to herbicide agents. After an extensive review of the Veteran's service records, and the Veteran's STRs, the Board finds no documentary evidence that the Veteran was in Canada during service. However, the Board did not find any reason to doubt the Veteran's testimony that he was in fact sent to Gagetown. However, even if the Board found that the Veteran did serve in Gagetown during active duty for training, the evidence of record at this time does not establish exposure herbicide agents during service so as to trigger presumptive service connection. The Board remanded the Veteran's claim in an effort to determine whether he was exposed to herbicides during service. However, in May 2017, VA issued a formal finding that it was unable to concede that the Veteran had service in Canada or was otherwise exposed to herbicides. Unfortunately, the record contains no competent evidence of herbicide exposure besides the Veteran's own lay statements and a layperson's assertions indicating exposure to gases or chemicals during service are not considered to be sufficient evidence alone to establish actual exposure to a tactical herbicide. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Here, while the Veteran asserts that he was exposed to herbicides in Canada, he has not provided any hard evidence of such exposure. Internet research does suggest that herbicide agents may have been used in Gagetown at some point, but the evidence of record does not show that they remained at the time the Veteran reports to have been stationed there. The Board notes that exposure to herbicide agents is presumed in Korea, but only if a unit was there within a finite time period. See 38 C.F.R. § 3.307 (a)(6)(iv). Similarly, even if it were conceded that herbicides were used in Gagetown, the Veteran would have to show actual exposure. This has not been done in this case. As such, the Board concludes that the Veteran is not presumed to have been exposed to herbicides during service. Regarding direct service connection, the Veteran's STRs do not show any complaints, symptoms, treatment, or diagnosis for his IHD, cardiomyopathy, or soft tissue sarcoma. There is no allegation that the diseases the Veteran is seeking service connection for began in service or within a year of either active duty or active duty for training. A review of the private medical evidence establishes that the Veteran has a current diagnosis for cardiomyopathy, ischemic heart disease, and soft tissue sarcoma. The Veteran was diagnosed with cardiomyopathy in 2005, ischemic heart disease in 2013 and soft tissue sarcoma in 2010. The Board acknowledges the receipt of several medical opinions dated in March 2012, but notes that the premise of the opinions was the Veteran's exposure to herbicide agents during active duty for training, and an opinion based upon an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran's representative argues that the Veteran's testimony support and the private medical opinions support a finding of herbicide exposure on behalf of the Veteran's claims. In addition, he asserts that the Veteran should be afforded the full benefit of reasonable doubt. See Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990) However, the weight of the probative evidence of record fails to demonstrate a medical link between the Veteran's cardiomyopathy, ischemic heart disease, or soft tissue sarcoma for a period of active service, and there is no record of a diagnosis within one year of separation. Likewise, exposure to herbicide agents has not been established so as to trigger a regulatory presumption. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, the benefit-of-the-doubt rule is not applicable in this case. As discussed, the evidence at this time does not establish that the Veteran had herbicide exposure during his military service, and there is no other basis upon which to afford service connection. Accordingly, the Board finds that the weight of the evidence is against the Veteran's claims for cardiomyopathy, ischemic heart disease, or soft tissue sarcoma and the claims are denied. ORDER Service connection for ischemic heart disease is denied. Service connection for cardiomyopathy is denied. Service connection for soft tissue sarcoma is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs