Citation Nr: 1805010 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-01 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a claimed disability manifested as steatosis (fatty liver) and elevated liver function test results, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran served on active duty from December 1970 to March 1975. This case initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In May 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the record. In January 2013, January 2014, November 2014, and May 2016, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. That development has been completed, and the case has since been returned to the Board for appellate review. FINDINGS OF FACT 1. In December 2017, prior to the promulgation of a decision in the appeal, the Veteran's representative indicated that he wanted to withdraw his appeal for the issue of entitlement to service connection for right ear hearing loss. 2. The Veteran did not serve in the Republic of Vietnam during the Vietnam era and was not otherwise exposed to herbicides during his military service. 3. A disability manifested as steatosis (fatty liver) and elevated liver function test results did not manifest in service and is not otherwise related to the Veteran's military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant have been met with respect to the issue of entitlement to service connection for right ear hearing loss. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. A disability manifested as steatosis (fatty liver) and elevated liver function test results was not incurred in active service. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). In a December 2017 statement, prior to the promulgation of a decision in the appeal, the Veteran's representative indicated that he wanted to withdraw his appeal for the issue of entitlement to service connection for tight ear hearing loss. Thus, there remains no allegation of errors of fact or law for appellate consideration with respect to this claim. Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and it is dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection on a direct basis may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases may be presumed to have been incurred in service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, hepatic steatosis or non-alcoholic fatty liver disease is not among the listed chronic diseases. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 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 section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that 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. 38 C.F.R. § 3.307(d)(6)(iii). 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. Id. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). In this case, the Veteran has claimed that he current has a disability manifested as steatosis (fatty liver) and elevated liver function test results that is due to herbicide exposure in service. As a preliminary matter, the Board finds that the record does not show that a disorder manifested as steatosis (fatty liver) and elevated liver function test results began during the Veteran's active service. In this regard, the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis pertaining to his liver. In fact, a December 1974 separation examination report documented the Veteran as having a normal abdomen and viscera, and in a report of medical history dated in March 1975, the Veteran also denied having or ever having a history of stomach, liver, or intestinal trouble. Moreover, the medical and lay evidence does not show that a liver disorder manifested in service or for many years thereafter. In fact, the Veteran has not made any assertion that the claimed disorder was present in service or shortly thereafter. Rather, the evidence of record shows that the Veteran had elevated liver function tests in October 2005 and that he was not diagnosed with a liver disorder until approximately 2005, which would have been approximately thirty years after his separation from service. A March 2006 VA ultrasound report later noted that the Veteran had steatosis of the liver, and an August 2008 VA ultrasound report indicated that the Veteran had a fatty infiltration of the liver with a history of elevated liver function tests. Further, during a September 2013 VA liver examination, the Veteran reported that his elevated liver functions were discovered during routine bloodwork in 2008, and a subsequent ultrasound demonstrated a fatty liver. In addition, during the May 2012 hearing, he specifically denied having any problems with his liver during service. Rather, he testified that he first began having problems with his liver between 2002 and when he was first diagnosed with diabetes mellitus in October 2005. Thus, regardless of the specific date, the Veteran has not claimed that a liver disorder manifested in service. Moreover, the record on appeal contains no indication that any medical professional has related any current liver disorder to his active service or any incident therein. During the September 2013 VA liver examination, the Veteran indicated that he was deployed to Vietnam; served as an operating room technician from 1970 to 1975; was exposed to bodily fluids and one patient with hepatitis; and drank "torpedo juice," which consisted of 180 proof grain alcohol and grapefruit juice) once every two weeks. The examiner diagnosed the Veteran with non-alcoholic steatosis of the liver with associated elevated liver enzymes. The examiner explained that steatosis is a disease of the liver that is caused by fat accumulation, which may or may not progress to a more severe hepatic disorder. The examiner related that the Veteran had no evidence of cirrhosis or fibrosis of the liver as a result of his current hepatic steatosis and that there was no evidence of hepatic infection. In an April 2014 VA medical opinion, the examiner opined that the Veteran's liver disease, diagnosed as non-alcoholic steatosis of the liver, was less likely than not incurred in or casued by service. The examiner indicated that there were no reports recording the Veteran's claimed exposure to bodily fluids and a patient with known hepatitis during his work as an operating room technician from 1970 to 1975. In addition, he noted that documentation of the Veteran's liver condition did not begin until many years after separation from service. He reported that the Veteran's anti-hepatitis C virus and hepatitis B surface Ag were negative in October 2007 and that his hepatitis panel was negative in February 2008. He related that an August 2008 abdominal ultrasound noted fatty infiltration of the liver. The examiner noted that viral hepatitis could have a latent manifestation, but the Veteran's hepatitis panels did not demonstrate the presence for these antigens. Therefore, he concluded that it was less likely than not that the Veteran's liver disease began during service or was related to any incident in service. In a July 2016 VA medical opinion, the examiner diagnosed the Veteran with steatosis (fatty liver) and elevated liver function tests. He opined that it was less likely than not that the Veteran's liver disorder was due to exposure to bodily fluids from patients that he treated while serving as an operating room technician and corpsman. The examiner reported that there were no records in the Veteran's service treatment records that showed any potential exposure to bodily fluids or treatment for any infections accrued from exposure to bodily fluids during service. In addition, the examiner opined that it was less likely than not that the Veteran's liver disorder was due to exposure from treating a patient who was quarantined for hepatitis A. He noted that there were no records in the Veteran's service treatment records demonstrating any potential exposure to a patient with hepatitis A during service. Further, he related that, even if the Veteran was exposed to hepatitis A, it would not cause the Veteran's current chronic liver condition. He explained that hepatitis A is a self-limiting viral infection that it not associated with long-term liver conditions. The VA examiner did opine that the Veteran's liver disorder was at least as likely as not proximately due to herbicide exposure during service, if such exposure is confirmed. The examiner also reported that the Veteran's steatosis and elevated liver function test results were at least as likely as not associated with his nonservice-connected type II diabetes mellitus. He reasoned that the Veteran's type II diabetes mellitus was at least as likely as not due to herbicide exposure incurred during service in Vietnam; therefore, his hepatic steatosis is at least as likely as not due to herbicide exposure in Vietnam as well. In this case, however, the record on appeal currently contains no service department evidence establishing that the Veteran was present on the land mass of Vietnam or in its inland waterways during the Vietnam era. VA regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). 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. It does not include service on a deep-water naval vessel in the waters offshore. 38 U.S.C. § 101(29)(A); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2015); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009) (holding that a veteran must have actually set foot within the land borders of Vietnam or been present in the inland waters of Vietnam to be entitled to presumptive service connection). The evidence of record confirms that the Veteran served aboard the USS Okinawa, which had been in waters off the coast of Vietnam from approximately April 17, 1975, to April 29, 1975. However, the records also show that the Veteran served aboard the USS Okinawa from March 1974 to no later than March 1, 1975. In fact, the Veteran's personnel records show that he separated from the Navy on March 5, 1975, nearly two months before the ship operated in the waters off the coast of Vietnam. The command histories from 1974 and 1975 indicate that, while the Veteran was aboard the ship from March 1974 to March 1975, the ship departed Hong Kong in February 1974 for the United States and arrived in Long Beach, California, in April 1974. The ship remained in the United States until it departed on another WESTPAC in January 1975. The ship arrived in Subic Bay, Republic of the Philippines, in January 1975 and departed for Singapore. The ship arrived in Singapore in February 1975 and then proceeded to the South China Sea, where the ship operated until April 1975. A review of the command history and deck logs of the USS Okinawa contained no documentation that the ship docked or transited inland waterways of Vietnam while the Veteran was aboard. With respect to the Veteran's contentions that he set foot in Vietnam while he served aboard the USS Okinawa, the Board notes that, during an October 2007 VA Agent Orange examination, the Veteran stated that he never went ashore in Vietnam. However, during a May 2012 Board hearing and in a February 2015 statement, the Veteran reported that he accompanied members of SEAL teams that were embarked aboard the USS Okinawa to Vietnam. He stated that he was allowed to fly in helicopters with the SEALs that were launched from the USS Okinawa and flew to Vietnam for their missions. He reported that, when they arrived in Vietnam, he got out of the helicopter and walked around, thereby setting foot in country. When questioned about the discrepancy between his testimony with his statement during the October 2007 VA Agent Orange examination, the Veteran stated, "Yeah, because first I told them I didn't step foot in Vietnam. When the... when the doctor examined me, I didn't tell him that, but today, I want to tell you, I did set foot in Vietnam." See hearing transcript, p. 7. In addition, during the May 2012 hearing, the Veteran reported that he fell out of a helicopter in North Vietnam and landed in a rice field in approximately January 1974. He stated that he injured his neck during the fall and that he was treated on the ship following the incident. In a subsequent statement dated in November 2012, the Veteran reported that he was treated at sick call aboard the USS Okinawa for a "hard landing" in April 1974. In addition, in a February 2015 statement, he mentioned that he fell out of a helicopter and injured his neck. However, no records establish that the Veteran set foot in Vietnam itself. The Board finds that Veteran's statements suggesting that he set foot in Vietnam and/or fell from a helicopter into a rice paddy in Vietnam are lacking in credibility. The Board assigns far more probative weight to the objective contemporaneous record than to the statements of the appellant, which were made in the context of a claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that the contemporaneous evidence has greater probative value than history as reported by a claimant). The Board observes that, prior to filing his claim of service connection for a liver disorder, the Veteran had specifically denied ever having served in Vietnam. See October 2007 VA Agent Orange examination report. In addition, the Veteran has repeatedly stated that he flew into Vietnam on helicopters with embarked SEAL teams. However, in a July 2015 report, JSRRC specifically noted that the USS Okinawa command histories and deck logs did not document helicopters from the USS Okinawa dropping off SEAL teams in North Vietnam. Further, the Veteran claimed that he was treated aboard the USS Okinawa after he injured his neck during a fall from a helicopter in Vietnam in January 1974 or April 1974. See May 2012 hearing transcript, November 2012 statement. However, the Veteran's personnel records indicate that the Veteran was not stationed aboard the USS Okinawa until March 1974. In fact, a Transfers and Receipts record indicates that the Veteran had reported to Naval Regional Medical Center (NRMC) Long Beach in California in February 1973 and did not report to the USS Okinawa until March 14, 1974. Therefore, the Board finds that it is not possible that the Veteran was injured in a fall from a helicopter in Vietnam in January 1974. Moreover, the Board notes that there are no service treatment records that show any treatment for a neck injury in April 1974 or at any other time during his service. Indeed, his December 1974 separation examination found his spine and neck to be normal, and there were no neurologic abnormalities. The Board further notes that the appellant's recent statements that he served in Vietnam were made in the context of a claim for monetary benefits based on Agent Orange exposure. The fact that these recent statements contradict his earlier statement during the October 2007 VA Agent Orange examination raises significant questions regarding their veracity. Moreover, as noted above, his recent statements are flatly contradicted by the official service department records, as well as the contemporaneous clinical records. The Board has also considered the Veteran's contentions to the effect that he was exposed to Agent Orange, herbicide agents, and/or pesticides while in transit to report aboard the USS Okinawa, treating embarked SEAL team members aboard the USS Okinawa, through the ship's laundry, and when he was waiting for a flight back to the United States at Clark Air Base in the Philippines after he departed the USS Okinawa. In September 2008, August 2014, and February 2015 statements, the Veteran reported that he flew to the Philippines on a commercial airline to report aboard the USS Okinawa. He stated that, as the flight landed in the Philippines, a stewardess walked down the center aisle of the plane spraying a pesticide into the air. He also indicated that the pilot informed the passengers that the pesticide was required by the government of the Philippines. In an August 2014 statement, the Veteran related that he was exposed to Agent Orange upon his arrival to the Philippines enroute to Subic Bay to meet the ship. He stated that he rode in a truck for approximately three hours with the windows down along long, winding dirt roads with little vegetation despite being in the jungle. He noted that Agent Orange was used on the jungle roads to control vegetation in the jungle canopy. In a February 2015 statement, the Veteran indicated that, upon reporting in the Philippines, he was provided with a rifle and a bayonet and was told that he would be escorting a missile to the Subic Bay Naval Base. He indicated that he traveled in a diesel truck without air conditioning and that the missile was pulled on a trailer behind the truck. He also reported that the truck traveled down a dirt road through the jungle and that, when the driver stopped at a store for lunch, the Veteran exited the truck. He stated that he walked into the jungle canopy and noticed that the foliage was thin. The Veteran's service personnel records indicate that he served as a medical corpsman aboard the USS Okinawa; his specific rating was an operating room technician. During the October 2007 VA Agent Orange examination, the Veteran stated that he treated wounded SEALs and Marines brought aboard the ship from combat. The Veteran indicated that he provided medical care to SEALs and reconnaissance rangers who went into Vietnam on two week rotations. See August 2008 claim; May 2009, January 2010, and August 2014 statements; and May 2012 hearing transcript. He has claimed that he was indirectly exposed to Agent Orange from his patients' clothing and personal belongings. In September 2008, May 2009, January 2010, August 2014, and February 2015 statements and during the May 2012 hearing, the Veteran further claimed that he was exposed to Agent Orange through the ship's laundry. Specifically, he reported that the SEAL team members embarked on the ship rotated on and off the ship performing missions in Vietnam and that their uniforms and clothing were washed in the ship's laundry with the crew's laundry. In addition, in his January 2010 VA Form 9, the Veteran reported that, after he departed the USS Okinawa on temporary duty before he separated from service, he spent approximately two weeks at Clark Air Base in the Philippines waiting for a flight to the United States. While at the base, he noted that he observed several large camouflaged jets that he believed were used to spray herbicides in Vietnam. However, he did not contend that he ever came into contact with the airplanes. In October 2008, the Personnel Information Exchange System (PIES) responded to a request from the RO for any documents showing that the Veteran was exposed to herbicides; however, a response indicated that there were no records of exposure to herbicides. The Board also observes that the Philippines, including Subic Bay, is not included on the Department of Defense (DOD) list of herbicide use and test sites outside Vietnam. Therefore, the Veteran's contentions that he was exposed to herbicides while transiting to and from the USS Okinawa are not credible. In addition, there is no evidence of record that supports the Veteran's claims that he was exposed to pesticides on a commercial plane, that he was exposed to Agent Orange from clothing and personal belongings of his patients treated aboard the ship, or that he was exposed to Agent Orange after his clothing was washed in the ship's laundry facilities. The Board has carefully considered the Veteran's contentions to the effect that he was exposed to pesticides and Agent Orange during service; however, the Board assigns more probative weight to the service departments records discussed above than to the Veteran's speculations or conjecture regarding his claimed exposure to herbicides and pesticides. Based on the foregoing, the Board finds that the Veteran's claims that he served in the Republic of Vietnam, fell and injured his neck in Vietnam, and had exposure in service are not credible. See Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability); see also Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (discussing the factors to be considered in determining the weight to be assigned to evidence, including inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, and witness demeanor). Under these circumstances, the Board finds that the appellant is not entitled to the legal presumption of herbicide exposure. See 38 C.F.R. § 3.307(a)(6)(iii) (2015); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009). Additionally, the Board finds that the record on appeal contains no credible indication that the appellant was actually exposed to herbicides, such as Agent Orange, during his active duty. The Veteran's service treatment and personnel records contain no indication of Agent Orange exposure, and official service department records contain no documentation of spraying, testing, transporting, storage or use of herbicides on the USS Okinawa or in the Philippines. Under these circumstances, the Board finds that the evidence establishes that the Veteran was not exposed to Agent Orange in service. Therefore, the Board finds that in-service exposure to an herbicide agent, such as Agent Orange, has not been established, nor may it be presumed. 38 C.F.R. § 3.309(e) (2015). In summary, the Board finds that the most probative evidence shows that a liver disorder was not present during the Veteran's active service or for many years thereafter. He also did not have herbicide exposure in service. As such, there is disease, injury, event, or exposure to which a current disorder could be related. For these reasons, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. ORDER The appeal as to the issue of entitlement service connection for right ear hearing loss is dismissed. Service connection for a claimed disability manifested as steatosis (fatty liver) and elevated liver function test results, to include as due to herbicide exposure, is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs