Citation Nr: 1804551 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-23 247 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to service connection for viremia. 2. Entitlement to service connection for diabetes. 3. Entitlement to service connection for coronary artery disease (CAD). 4. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from December 1964 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the VA RO. The Veteran testified before the undersigned at a videoconference hearing held before the undersigned in September 2017. FINDINGS OF FACT 1. The Veteran does not have a viremia disability. 2. The Veteran did not serve in Vietnam, and his activities and duties in service did not otherwise involve visitation to Vietnam. 3. The Veteran's diabetes did not originate in service or until years thereafter, and is not otherwise etiologically related to service. 4. The Veteran's CAD did not originate in service or until years thereafter, and is not otherwise etiologically related to service. 5. The Veteran's hypertension did not originate in service or until years thereafter, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for viremia have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for diabetes have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for CAD have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). In the instant case, the Veteran was provided with all appropriate notification in June 2012. The Veteran has not otherwise alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009); see also Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 duty to assist argument). Thus, adjudication of the Veteran's 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). The Veteran's post-service medical treatment records have been obtained, to the extent they were both identified and available. The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, in May 2012, the Veteran was provided with a hematological and lymphatic examination. The examination report indicates that the examiner reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Veteran has not objected to the adequacy of this examination. The Board, therefore, concludes that this examination report is adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not been provided with examinations addressing his diabetes, CAD, and hypertension. VA does not have a duty to provide an examination in every case. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, VA's obligation 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). As is discussed in greater detail below, while the evidence shows that the Veteran currently has diabetes, CAD, and hypertension, the evidence does not indicate that he experienced an in-service injury, event, or disease that might have resulted in the development of such a disability. The sole basis of his belief that service connection is warranted is based on his allegation of herbicide exposure during service. However, as explained below, the evidence of record does not establish herbicide exposure. As such, the evidence of record is thus insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. Without competent evidence suggesting that the Veteran experienced a relevant in-service injury, event, or disease, VA examinations addressing the Veteran's claimed diabetes, CAD, and hypertension, which began years after separation from service, are unwarranted. The Veteran participated in a videoconference hearing before the Board in September 2017, and a transcript of this hearing has been associated with the record. The Board finds that there is no indication that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection for Viremia In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for service connection that a current disability be present is however satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Turning to the facts in this case, while in service, following complaints of low-grade fever, malaise, and myalgia, the Veteran was diagnosed with viremia (or a virus in the bloodstream) on September 18, 1966. A September 19, 1966 record indicated that "on a supportive regimen, symptoms have disappeared". The Veteran was discharged to duty on September 20, 1966. The Veteran's May 1968 separation examination, serology testing and examination of the Veteran's bodily systems were normal. Following service, the Veteran filed a claim of entitlement to service connection for viremia in December 2011. The Veteran underwent a VA examination in May 2013, at which time the examiner did not find that the Veteran currently suffered from viremia. The Veteran's post-service treatment records are similarly silent for a diagnosis of viremia. Thus, while the Board acknowledges that the Veteran was diagnosed with viremia in service, the weight of the evidence of record does not support a finding that the Veteran has been diagnosed with viremia since finding his appeal, nor does it support a finding that the Veteran's in-service diagnosis with viremia resulted in a chronic disability. The Board has considered the Veteran's own statements and testimony as to the presence of any residuals, but finds that the determination of whether viremia is present, or whether any residuals persist of a viremia that service records indicate had resolved almost two years before discharge, is far outside the realm of lay expertise. As the veteran is a layperson, the Board finds his statements and testimony concerning the presence of viremia or any residuals to lack competency. In sum, the Board concludes that the criteria for service connection for viremia have not been met, and the claim is denied. Service Connection for Diabetes, CAD, and Hypertension The Veteran claims that he was exposed to herbicides during active service and that he warrants service connection for diabetes, CAD, and hypertension on a presumptive basis. Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam war will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1) (2012); 38 C.F.R. § 3.307(a)(6) (2012). Diabetes and CAD have been presumptively associated with herbicide exposure. 38 U.S.C. § 1116(a)(2) (2012); 38 C.F.R. § 3.309(e) (2017). Hypertension, however, is expressly excluded from the list of diseases that may be presumptively linked to herbicide exposure. 38 C.F.R. § 3.309(e), Note 2. The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii) (2017). To be entitled to a presumption of service connection based on in-service herbicide exposure, a veteran must have set foot on the landmass of Vietnam or served on its inland waters between January 9, 1962, and May 7, 1975. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). While qualifying service in Vietnam includes service on its inland waterways, it does not include service on deep-water naval vessels in Vietnam's offshore waters. 38 C.F.R. § 3.307(a)(6)(iii) (2017); Haas v. Peak, 525 F.3d 1168; 66 Fed. Reg. 23, 166; see also VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters offshore of Vietnam is not qualifying service in Vietnam). Turning to the facts in this case, the Veteran enlisted into service in December 1964. In January 1965, the reported for basic training at the Naval Training Center San Diego. After completing basic training, the Veteran transferred to the Naval Air Technical Training Center (NATTC) in Jacksonville, Florida. On June 16, 1965, the Veteran was transferred from the NATTC in Jacksonville, Florida to Attack Squadron 125 at the Naval Air Station (NAS) in Lemoore, California for a training period of four weeks. The Veteran reported for such duty on June 30, 1965. On August 11, 1965, the NAS in Lemoore, California found the Veteran to be physically qualified for transfer, and the Veteran transferred from duty at the NAS in Lemoore, California on August 12, 1965. On August 14, 1965, the personnel officer of Attack Squadron 164 noted that the Veteran commenced continuous present sea duty as of that date. On August 29, 1965, the Veteran reported for duty with Attack Squadron 164 aboard the USS Oriskany (Oriskany), an aircraft carrier. An August 29, 1965, physical examination aboard the Oriskany indicated that the Veteran was fit for duty. The Veteran separated from service in June 1968, and his service separation document shows that he received the National Defense Service Medal, the Navy Unit Commendation, the Vietnam Service Medal (with two campaign stars), and the Republic of Vietnam Campaign Medal (with device). The Veteran has alleged that he was located physically in the inland waters of Vietnam and on the landmass of Vietnam between the time when he left the NAS in Lemoore, California, and the time when he reported for duty aboard the Oriskany. In May 2014, the Veteran stated that after leaving the NAS in Lemoore, California, he reported to duty aboard the USS Pollux, a supply ship. The Veteran indicated that he served on the USS Pollux "for some time" travelling along the coast of Vietnam delivering supplies. The Veteran recalled delivering supplies to the Marine Corps base in Chu Lai, Vietnam, and the Veteran stated that he went on leave at Chu Lai for a couple of days before reporting for duty on the Oriskany. During the Veteran's September 2017 hearing, the Veteran reported that while in transit to the Oriskany, he served on the USS Potts and USS Biscayne, which had "many . . . calls for stops along the coast of Vietnam", and which docked in Cat Lai, Vietnam, for eight days. The Veteran stated that he disembarked from the ship and spent a "day, day and a half" on the beach. The Veteran remembered seeing "them deforest in the foreground dropping bombs". Turning to an analysis of these facts, the Veteran's service personnel and medical records show no evidence that the Veteran served on the landmass of Vietnam or in its inland waters. While the Board has considered the Veteran's contentions that he served aboard a supply ship (identified either as the USS Pollux or the USS Potts) that transited Vietnam's inland waters, the evidence of record does not support this contention. The Veteran's personnel records and medical records, consistently refer to the Veteran serving only aboard the Oriskany. The record does not show the Veteran taking leave in Vietnam or serving aboard smaller supply vessels during the 17-day travel period between his departure from Lemoore and his arrival aboard the Oriskany. Furthermore, the Board notes that serving on a deep-water vessel such as the Oriskany does not qualify as service in "Vietnam" for the purpose of presumptive service connection. There is no evidence suggesting that the Oriskany, an aircraft carrier, docked in Vietnam or served in the inland waters of Vietnam. The Board finds, therefore, that the evidence does not support a finding that the Veteran set foot in Vietnam during the Vietnam war, nor did he serve in its inland waters. The preponderance of the evidence of record does not establish that the Veteran was exposed to Agent Orange or any other qualifying herbicide as specified at 38 C.F.R. § 3.307(a)(6)(i). Accordingly, the Veteran is not entitled to presumptive service connection for diabetes or CAD. Even when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct or secondary basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board will next analyze the Veteran's entitlement to service connection on a direct basis. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for a claimed disorder, there must be (1) medical 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) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). While the Veteran has not advanced a theory of entitlement to service connection on a direct basis, in the interest of completeness, the Board will address such a claim. With respect to the first Hickson element, medical evidence of a current disability, it is undisputed that the Veteran suffers from diabetes, CAD, and hypertension. The first Hickson element is therefore satisfied. With respect to the second Hickson element, in-service incurrence or aggravation of a disease or injury, as discussed in detail above, the Veteran claimed that in-service exposure to herbicides caused his disabilities. The Veteran has broadly stated that he was exposed to Agent Orange while in service, and the Board has found these allegations to lack merit. The Veteran never claimed, nor does the evidence of record suggest, that he was diagnosed with or treated for the symptoms of diabetes, CAD, or hypertension in service. Indeed, the Veteran's May 1968 separation examination indicated that the Veteran's heart, chest, and endocrine system were all normal, and the Veteran's blood pressure measured 132/78 mmHg. For these reasons, the Board finds that the second Hickson element, in-service incurrence or aggravation of a disease or injury, is not satisfied, and the claim for service connection on a direct basis fails. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his claimed disabilities, and it finds that he has not done so. There is no competent medical evidence suggesting that the Veteran was treated after service for his claimed disabilities until many years after separation from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). Furthermore, the Board finds that the symptoms of diabetes, CAD, and hypertension were not shown within one year following separation from service. Consequently, presumptive service connection is not warranted. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The benefit sought on appeal is accordingly denied. ORDER Service connection for viremia is denied. Service connection for diabetes is denied. Service connection for CAD is denied. Service connection for hypertension is denied. ______________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs