Citation Nr: 1756769 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-09 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for heart condition, to include arteriosclerotic heart disease, valvular heart disease, aortic stenosis with murmur, and right carotid obstruction, to include as due to herbicide exposure. 2. Entitlement to service connection for a sleep disorder, to include sleep apnea, to include as due to herbicide exposure. 3. Entitlement to service connection for hypogonadism, to include as due to herbicide exposure. 4. Entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure. 5. Entitlement to service connection for peripheral neuropathy, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1971 to August 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction has since been transferred to the RO in Cleveland, Ohio. The October 2009 rating decision denied service connection for coronary artery disease (CAD), right carotid obstruction and aortic stenosis with murmur. However, the Board has recharacterized the issue on appeal and broadened the Veteran's claim to include a claim for a heart condition, to include arteriosclerotic heart disease, valvular heart disease, aortic stenosis with murmur, and right carotid obstruction pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled). The Board notes the Veteran was scheduled for a Board hearing in June 2017. Prior to the scheduled hearing, the Veteran's representative contacted and advised the Board that the Veteran would not appear for the hearing and that he did not want to reschedule a hearing. Accordingly, any request for a hearing in connection with the current issues on appeal is considered withdrawn. See 38 C.F.R. § 20.704 (e) (2017). FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam, and he otherwise was not exposed to herbicides in service. 2. The Veteran's heart condition did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran's active service. 3. The Veteran's sleep disorder did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran's active service. 4. The Veteran's hypogonadism did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran's active service. 5. The Veteran's erectile dysfunction did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran's active service. 6. The Veteran's peripheral neuropathy did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart condition, to include arteriosclerotic heart disease, valvular heart disease, aortic stenosis with murmur, and right carotid obstruction, are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for service connection for hypogonadism are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 4. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 5. The criteria for service connection for peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Herbicide Exposure The Veteran claims exposure to herbicides while serving aboard the USS Butte. Specifically, he states that the USS Butte conducted minesweeping operations in Haiphong Harbor while he served aboard ship. The Board interprets this statement as an assertion of service within an "inland waterway" for purposes of establishing presumptive herbicide exposure. Additionally, in an October 2013 VA medical record, the Veteran expressed the concern that he was exposed to Agent Orange on the flight deck of his ship. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2017). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C. § 1116 (f) (2012) and 38 C.F.R. § 3.307 (a)(6)(iii) (2017). Service in the Republic of Vietnam includes service in the waters off shore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). There is no presumption for exposure to herbicides for a veteran who served aboard ship off the shores of the Republic of Vietnam. In Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), the Federal Circuit confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. Thus, a veteran must actually set foot within the land borders of Vietnam, to include the contiguous waterways, in order to be entitled to the statutory presumptions for disabilities claimed as a result of exposure to herbicides. See Haas, supra; see also VAOPGCPREC 27-97. What constitutes "inland waterways" was not defined in Haas and is not defined in VA regulations. The Board then must refer to the VA Adjudication Procedure Manual M21 (Manual) for interpretive guidance. The Manual maintains that inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. See VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. That said, the Manual clearly states that service aboard a ship that merely anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides. Id. [Emphasis added.] Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) (2012) and 1116 and 38 C.F.R. § 3.303 (2017). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012). The Board notes an August 2009 request for information showing the Veteran served aboard the USS Butte which was noted to have operated in the official waters of the Republic of Vietnam for several days in February and March 1973. However, no record was found that provided evidence the Veteran had in-country service. Exposure to herbicides was not conceded. The Board additionally notes a July 2009 medical record showing the Veteran was diagnosed with CAD, aortic stenosis murmur, right carotid obstruction, hypogonadism of undetermined etiology, peripheral neuropathy, erectile dysfunction and sleep apnea. The medical record also shows the Veteran reported only serving off-shore in Vietnam. Even if one were to accept that the USS Butte conducted minesweeping operations in Haiphong Harbor and other areas off the coast of North Vietnam during the Veteran's service aboard this ship, service in the close coastal waters off North Vietnam does not meet regulatory criteria for presumed herbicides/Agent Orange exposure. See 38 C.F.R. § 3.307(a)(6); see also Haas, 525 F.3d. at 1168. As the evidence does not show the Veteran served in Vietnam at any time between September 1971 and August 1975, the presumptive provision does not apply. Additionally, with regard to the Veteran's assertion that he was exposed to herbicides while serving aboard the flight deck of the USS Butte, the Board points out that there is no presumption of exposure to herbicides through equipment or human remains that were located in an area where the presumption of exposure to such herbicides attaches. Instead, the evidence must show that the Veteran was actually exposed to herbicide agents. Such has not been shown. Accordingly, the Board concludes that the evidence of record does not support a finding of exposure to herbicides during service and will not further consider the Veteran's service connection claims on a secondary basis due to herbicide exposure. Heart Condition The Veteran's STRs include a June 1971 enlistment examination and an August 1975 separation examination; both of which noted a normal heart and vascular system. The STRs also show that in February 1974, the Veteran complained of chest pains for the past two weeks. The pain started on the left side of his chest and radiated to the right side. The treating physician noted a history of rheumatic fever approximately 7-8 years prior. The Veteran again reported continued chest pain the following week. The physician noted that the pain was not related to exercise or positive for starting on the left side and then radiating to the right. An EKG was noted as within normal limits. The Veteran was diagnosed with undetermined chest pain. An October 2005 VA examination related to the Veteran's non-service-connected pension claims shows he was diagnosed with hypertension in May 2005 with reported daily chest pain. A cardiovascular examination revealed no murmurs, gallops or rubs. An EKG showed sinus bradycardia with evidence of old ischemic changes. The Veteran was diagnosed with coronary artery disease (CAD). A July 2009 VA medical record shows the Veteran reported frequent heart palpitations and the physician noted a Bruce treadmill test in 2005 which showed equivocal results with hypertension and that a 2006 stress test was normal. The Veteran also reported feeling worn out all the time and that slight physical activity also caused him to feel worn out. The physician also noted the following heart conditions; loud bruit, 3/4 right common and internal carotid, and 1/4 aortic stenosis ejection type murmur which was heard only with respiratory cessation. The Veteran was diagnosed with CAD, morbid obesity, aortic stenosis murmur, and right carotid obstruction. The physician noted that the diagnosed heart conditions "could be potential Agent Orange related diseases." The Veteran underwent a VA examination in January 2016. The Veteran was diagnosed with arteriosclerotic heart disease and valvular heart disease requiring continuous medication. The Veteran was not found to have ischemic heart disease. An echocardiogram revealed cardiac hypertrophy and cardiac dilation. The examiner opined that the claimed "aortic stenosis murmur" condition was "less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner based her opinion on no confirmed aortic stenosis on which to render a medical opinion. Specifically, the examiner noted that a previous diagnosis of aortic stenosis murmur was made solely on auscultation of the Veteran's heart with a stethoscope, and that, conversely, a January 2016 echocardiography showed a normal aortic valve function. Therefore, the examiner found that the previous diagnosis was in error as it was not supported by diagnostic testing. As to the Veteran diagnosed CAD, the examiner further opined that it was "less likely than not (less than 50 percent probability) incurred in or caused by" the claimed in-service chest pain symptoms in 1974, or that the symptoms were early manifestations of the current heart condition. The examiner based her opinion on the Veteran's age at the time of the in-service chest pain and noted that it was extremely rare for an individual to have symptomatic CAD at that age. The examiner also noted that treatment records were silent as to any heart condition until 31 years later. Therefore, there was no evidence of a chronic progressive heart condition to link the two episodes together. Lastly, the examiner found no evidence of a pre-existing heart condition, and noted that rheumatic fever was not the same as rheumatic heart disease. As noted above, in order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). While the evidence establishes current heart conditions, the evidence of record does not establish an etiological link between the diagnosed heart conditions and service. The Board notes that there are seemingly conflicting medical opinions of record. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. The January 2016 VA examination is found to be of more probative value than the July 2009 VA medical opinion. The Board notes that the July 2009 VA physician simply noted that the diagnosed conditions "could be potential Agent Orange related diseases." However, as discussed above, in-service exposure to herbicide agents is not presumed or established by the record. The July 2009 opinion did not otherwise relate any current heart condition to the Veteran's active service, to include his acute report of chest pain. The Board additionally recognizes the Veteran's lay statements linking his heart conditions to his in-service treatment for chest pain. With regard to lay evidence of a nexus, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this vein, the Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran is competent to report purported symptoms such as pain or whether he has received a diagnosis from a medical professional. 38 C.F.R. § 3.159(a)(2) (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, without evidence showing that he has medical training or expertise, he cannot competently provide a medical nexus opinion between his currently diagnosed heart conditions and an in-service event, such as treatment for chest pain. 38 C.F.R. § 3.159(a)(1)-(2) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (2007). In any event, to the extent the Veteran may be competent to opine as to medical etiology, the Board finds that the Veteran's lay assertions in the present case are outweighed by the January 2016 VA medical examiner's opinion, who determined that the there was no nexus between the diagnosed heart conditions and service. The examiner has training, knowledge, and expertise on which she relied to form her opinion, and she provided a persuasive rationale. Thus, the Board finds that the second and third Shedden requirements have not been met. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for heart conditions. The claim is denied. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Sleep Disorder, Hypogonadism, Erectile Dysfunction, & Peripheral Neuropathy Service treatment records are negative for any complaints, treatment, or diagnosis of a chronic sleep disorder, genitourinary disorder, or neurological disorder. His service discharge examination was silent in this respect as well. A May 2005 VA anesthesia note noted no stridor, snoring or sleep apnea. An October 2006 VA sleep study revealed evidence of moderate OSA. Symptoms included snoring, oxygen saturation of less than 90 percent with a total of 0 apneas and 69 hypopneas. A January 2008 VA medical record noted a diagnosis of OSA by history. A July 2009 VA medical record diagnosed the Veteran with sleep apnea which the physician opined "could be [a] potential Agent Orange related disease." A March 2012 VA sleep study diagnosed the Veteran with severe OSA and obesity. A July 2009 VA medical record diagnosed the Veteran with hypogonadism, erectile dysfunction, and peripheral neuropathy, which the physician opined "could be [a] potential Agent Orange related disease." The July 2009 VA medical record diagnosed the Veteran with peripheral neuropathy which the physician opined "could be [a] potential Agent Orange related disease." However, apart from this record, other VA medical records do not show a diagnosis for peripheral neuropathy although contemporary VA medical record do show the Veteran takes gabapentin to treat neuropathy. It is unclear whether the Veteran has a current diagnosis for peripheral neuropathy. A March 2011 VA endocrinology record shows the Veteran reported being diagnosed with hypogonadism a few years prior. A November 2012 VA medical record noted the Veteran was found to have biochemical secondary hypogonadism with low testosterone levels. A June 2015 VA endocrinology medical record noted a diagnosis for secondary hypogonadism. A January 2011 endocrinology consultation noted that the Veteran reported the onset of his erectile dysfunction within the past 2 years. A November 2012 VA medical record noted the Veteran's erectile dysfunction was found to be secondary to his hypogonadism. Based on the evidence of record, the Board finds that service connection for a sleep disorder (OSA), hypogonadism, erectile dysfunction, and peripheral neuropathy is not warranted. The record is silent as to the Veteran having any of these conditions, or complaints referable to these conditions, in service or until many years thereafter. The only potentially positive opinion of record is the July 2009 VA record, which presented a speculative opinion that the conditions were related to exposure to Agent Orange. Additionally, there is no competent lay statement asserting that a sleep disorder, hypogonadism, erectile dysfunction, and/or peripheral neuropathy was incurred in or treated during service. Instead, the Veteran has consistently related these health problems to exposure to herbicides during service which has not been shown. It is again noted that exposure to herbicide agents has not been established. A theory service connection based on exposure to herbicide agents thereby fails. Thus, the Board finds that the second Shedden requirement has not been met. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for a sleep disorder (OSA), hypogonadism, erectile dysfunction, and/or peripheral neuropathy. The claim is denied. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). ORDER Entitlement to service connection for a heart condition, to include arteriosclerotic heart disease, valvular heart disease, aortic stenosis with murmur, and right carotid obstruction, to include as due to herbicide exposure, is denied. Entitlement to service connection for a sleep disorder, to include sleep apnea, to include as due to herbicide exposure, is denied. Entitlement to service connection for hypogonadism, to include as due to herbicide exposure, is denied. Entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure, is denied. Entitlement to service connection for peripheral neuropathy, to include as due to herbicide exposure, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs