Citation Nr: 1753210 Decision Date: 11/20/17 Archive Date: 12/01/17 DOCKET NO. 14-17 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable rating for service-connected bilateral hearing loss. 2. Entitlement to a rating in excess of 10 percent for a left hand disability. 3. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to herbicide agent exposure. 4. Entitlement to service connection for ischemic heart disease (IHD), to include as secondary to herbicide agent exposure. 5. Entitlement to service connection for prostate cancer, to include as secondary to herbicide agent exposure. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from July 1962 to July 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to increased ratings for bilateral hearing loss and a left hand disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT OSA, IHD, and sleep apnea were not shown in service and the weight of the evidence is against a finding that his OSA, IHD, or sleep apnea were related to or caused by his active naval service. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). 2. The criteria for service connection for IHD have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). 3. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS 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 claims 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), VA treatment records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify before the Board, but he declined. No VA examination was requested in relation to the issues of service connection for OSA, IHD, and prostate cancer. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that VA examinations would aid in substantiating the service connection claims for OSA, IHD, and prostate cancer. See 38 U.S.C. § 5103A(a). The weight of evidence is against a finding that OSA, IHD, and prostate cancer had their onset during active service or within one year of separation from active service or competent evidence even suggesting that OSA, IHD, and prostate cancer may be associated with service. As such, elements (2) and (3) are absent. Therefore, as discussed in detail below, VA has no duty to provide a VA examination or obtain an opinion in this case. Moreover, the U.S. Court of Appeals for the 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, 20 Vet. App. at 81. This standard has not been met in this case, and there is sufficient competent medical evidence of record to make a decision on the claims. Essentially, beyond the Veteran's statements, no evidence is of record to suggest that the Veteran's OSA, IHD, or prostate cancer either began during or was otherwise caused by his active service. These statements alone are insufficient to trigger VA's duty to provide an examination, as they are undermined by examination findings at the time of separation. 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 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. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents 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. The Veteran filed his service connection claims for OSA, IHD, and prostate cancer in August 2011, which were denied by the October 2012 rating decision. He asserts that his OSA, IHD, and prostate cancer are due to herbicide agent exposure. He reported that he served on a ship in the waters offshore Vietnam. Specifically, he asserted that he was stationed on the U.S.S. John R. Craig (Craig) during missions to Vietnam. A review of the Veteran's service records show that he served on the Craig from October 1962 to September 1964. He reported that while serving aboard the Craig, the ship made two trips to the coastal waters of Vietnam in the Gulf of Tonkin. However, he made no assertions that he went ashore during either of these trips. VA maintains a list entitled: "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents" which indicates that the Craig operated on inland waterways of Vietnam in July 1965 and was anchored off Nha Trang during the summer of 1968. However, both of these events happened after the Veteran's separation from service. In addition, the Department of the Navy reported in March 1987 that the U.S.S. Craig was not in the waters of Vietnam while the Veteran was stationed aboard. The record contains no competent evidence of herbicide agent exposure besides the Veteran's own lay statements. The Veteran has not submitted any competent medical evidence supporting his assertion of herbicide agent exposure. Moreover, 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 agent. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). As such, the Veteran's assertions that he had exposure to herbicide agents during service, is insufficient to establish such exposure. While the Board recognizes that the Veteran is sincere in his belief that he was aboard the U.S.S. Craig during missions to Vietnam, the Board finds that his assertions do not constitute credible evidence of herbicide agent exposure during the course of his duties in active service, particularly in light of the service department findings regarding his ship. Accordingly, the Board finds the preponderance of the competent and credible evidence weighs against the Veteran's assertions of exposure to herbicides. Therefore, the herbicide presumption is not for application in this case. See 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. The herbicide agent presumption does not apply to the Veteran. Regarding direct service connection, there is no objective evidence of record that links the Veteran's current OSA, IHD, and prostate cancer to his active service. STRs do not show a diagnosis of OSA, IHD, or prostate cancer during his service. Furthermore, the Veteran had normal a normal entrance examination in July 1962 and a normal separation examination in July 1966, which contained no evidence of OSA, IHD, or prostate cancer. Medical records after his service do not show that he was diagnosed with OSA, IHD, or prostate cancer within a year of separation. The first medical evidence contained in the claims file regarding OSA or heart symptoms is not until 2009. The first medical evidence contained in the claims file regarding prostate cancer is not until 2011. The Veteran's medical record does not show he began treatment for these conditions until more than four decades after his separation from service. As such, the record contains no diagnosis of OSA, IHD, or prostate cancer either in service or within one year after service, which would preclude service connection on the basis of continuity of symptomology or on any presumptive basis. The Veteran has not argued to the contrary. There is also no medical evidence linking the Veteran's current OSA, IHD, or prostate cancer to his active service, and he has not submitted any medical opinion that even suggests a relationship between his OSA, IHD, and prostate cancer and his active service. See Shedden, 381 F.3d 1163, 1167. Thus, there is no basis for service connection on a direct or presumptive basis. The criteria for service connection for OSA, IHD, and prostate cancer have not been met, and the Veteran's claims are denied. ORDER Service connection for OSA is denied. Service connection for IHD is denied. Service connection for prostate cancer is denied. REMAND The Veteran was granted service connection for bilateral hearing loss and a left hand disability in March 2004. In August 2011, he filed his increased ratings claims. The last VA examination for his bilateral hearing loss was conducted in September 2011 and the last VA examination for his left hand disability was conducted in October 2011, both exams are now more than six years old. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). Where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). New examinations are required to evaluate the current nature and severity of the Veteran's bilateral hearing loss and left hand disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected bilateral hearing loss. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected left hand disability. 3. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs