Citation Nr: 18140785 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 15-15 936 DATE: ORDER Entitlement to service connection for typhoid, claimed due to exposure to mustard gas, is denied. Entitlement to service connection for osteoporosis, also claimed as bone density and osteoarthritis, claimed as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, is denied. Entitlement to service connection for exposure to molds is denied. Entitlement to service connection for small pox, claimed as due to exposure to herbicides, and as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, is denied. Entitlement to service connection for exposure to anthrax and exposure to asbestos is denied. Entitlement to service connection for busted arteries, vessels and veins is denied. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for sciatica, claimed as due to exposure to radiation, is remanded. Entitlement to service connection for a right knee disorder, to include damage to meniscus and torn ligaments, is remanded. Entitlement to service connection for bilateral heel spurs is remanded. Entitlement to service connection for damaged sex organs, to include erectile dysfunction, is remanded. Entitlement to service connection for a respiratory disorder, to include walking pneumonia and bronchitis, claimed as due to exposure to radiation and as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, is remanded. Entitlement to service connection for bloody blisters, boils and bumps is remanded. Entitlement to an initial compensable rating for tinea pedis, with tinea cruris, also claimed as fungal fungus and skin rashes, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that typhoid began during active service, or is otherwise related to an in-service injury, event, or disease, to include exposure to mustard gas. 2. The preponderance of the evidence is against finding that osteoporosis, also claimed as bone density and osteoarthritis, began during active service, or is otherwise related to an in-service injury, event, or disease, to include as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117. 3. Exposure to molds, in and of itself, is not a disability for VA compensation purposes. 4. The preponderance of the evidence is against finding that small pox began during active service, or is otherwise related to an in-service injury, event, or disease, to include exposure to herbicides and as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117. 5. Exposure to anthrax or asbestos, in and of itself, is not a disability for VA compensation purposes. 6. The preponderance of the evidence is against finding that busted arteries, vessels and veins began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for typhoid, claimed as due to exposure to mustard gas, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.316. 2. The criteria for service connection for osteoporosis, also claimed as bone density and osteoarthritis, claimed as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for exposure to molds are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303 4. The criteria for service connection for small pox, claimed as due to exposure to herbicide and due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for exposure to anthrax and asbestos are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303 6. The criteria for service connection for busted arteries, vessels and veins are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 23 to November 29, 2000. The Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge in April 2018. A transcript of the hearing has been associated with the record. As the Veteran asserted in his hearing testimony that his claim for unspecified torn ligaments was associated with this right knee disorder, for clarification purposes, the Board has characterized the issue on appeal as set forth above. Additional VA clinical records dated to June 2016 have been associated with the record that have not been considered by the Agency of Original Jurisdiction (AOJ). However, these records are either duplicative of records already associated with the file or not relevant with respect to the issues decided herein. Moreover, the Veteran has also submitted private medical records that have not been considered by the AOJ. Nevertheless, as the Veteran substantive appeal was received after February 2013, waiver of AOJ consideration is not necessary. As such, the Board may properly consider this evidence. REFERRED In a September 2012 decision, the Board denied service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and schizoaffective disorder. In March 2016, the Veteran submitted a claim to reopen. However, it appears that in July 2016, the AOJ mistakenly determined that the issue of entitlement to schizoaffective disorder was still on appeal and, thus, failed to adjudicate the claim to reopen. However, this matter is not currently before the Board as it was previously denied. Accordingly, this issue is referred to the AOJ for adjudication. 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran has not been afforded an examination in connection with the issues decided herein; however, the Board finds that such is not necessary in the instant case. Specifically, the Veteran’s service treatment records are silent as to complaints, findings, or diagnoses of such disorders. Moreover, the preponderance of the evidence shows that the Veteran was not exposed to mustard gas, radiation or herbicides. Importantly, the evidence shows that the Veteran did not serve in the Southwest Asia theatre of operations. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claims herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also recognizes that the Veteran has reported that there may be outstanding private and VA clinical records. However, with respect to the issues decided herein, as there is no evidence of an event, injury or disease in service, these records are not relevant to these claims as they do not address the period of service. 1. Entitlement to service connection for typhoid, claimed due to exposure to mustard gas The Veteran has generally asserted that he has typhoid due to exposure to mustard gas in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Special provisions are in effect for service connection claims based on exposure to mustard gas or lewisite. Full body exposure to nitrogen or sulfur mustard during active military service together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, or the following cancers: nasopharyngeal; laryngeal; lung (except mesothelioma), or squamous cell carcinoma of the skin is sufficient to establish service connection for that condition. 38 C.F.R. § 3.316 (a)(1). Full-body exposure to nitrogen, sulfur mustard, or Lewisite during active military service, together with the subsequent development of chronic form of laryngitis, bronchitis, emphysema, asthma, or chronic obstructive pulmonary disease is sufficient to establish service connection for that condition. 38 C.F.R. § 3.316 (a)(2). Additionally, full-body exposure to nitrogen mustard during active military service together with the subsequent development of acute nonlymphocytic leukemia is sufficient to establish service connection for that condition. 38 C.F.R. § 3.316 (a)(3). A Veteran must provide evidence of in-service exposure and a diagnosis of current disability, but is relieved of the burden of providing medical evidence of a nexus between the current disability and his in-service exposure. Rather, that nexus is presumed if the other conditions are met, subject to the regulatory exceptions in 38 C.F.R. § 3.316. Typhoid is not one of the enumerated conditions contained in 38 C.F.R. § 3.316 (a). Thus, without a diagnosis of a disorder listed under the 38 C.F.R. § 3.316 (a), the Veteran’s claim cannot gain the benefit of a presumptive service connection for mustard gas exposure. Moreover, there is no basis to award service connection on a direct basis. The Veteran’s service treatment records are silent as to any findings of typhoid. Further, post-service clinical records are also silent with respect to any such findings. Importantly, while the Veteran contends that he was exposed to mustard gas in service, there is no evidence in the service records documenting such exposure. Moreover, the Veteran asserts that he was exposed to mustard gas when an oxygen mask was put over his mouth while hospitalized. As mustard gas exposure does not occur under these circumstances, the Veteran’s claim is inherently improbable. Thus, his statements concerning such exposure are not credible. In sum, there is simply no competent or credible evidence showing that the Veteran was exposed to mustard gas in service. Further, the Veteran has not described any other in-service incident. In sum, there is no evidence of an in-service incident; or evidence linking typhoid to service. While the Veteran believes that his typhoid is related to exposure to mustard gas, the Board reiterates that the preponderance of the evidence weighs against finding that exposure to mustard gas occurred. As such, the Board must find that service connection for typhoid is not warranted. As the preponderance of the evidence is against this claim, that benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for osteoporosis, also claimed as bone density and osteoarthritis, claimed as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117. The Veteran has generally asserted that he has osteoporosis, also claimed as bone density and osteoarthritis, due to an undiagnosed illness from his service in the Southwest Asia Theatre of Operations. Again, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In this regard, significantly, service records show that the Veteran did not serve in Southwest Asia theatre of operations. His DD 214 Form, which shows that the Veteran served for one month and seven days, documents that he had no foreign or sea service. Thus, as the Veteran did not serve in the Southwest Asia Theatre of operations, the presumptive regulations pertaining to an undiagnosed illness or other qualifying chronic disability under 38 C.F.R. § 3.317 are not applicable. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Moreover, there is no basis to award service connection on a direct basis. The Veteran’s service treatment records are silent as to any findings of osteoporosis. Importantly, the Veteran has primarily claimed that his osteoporosis is due to an undiagnosed illness. Again, the Veteran did not serve in the Southwest Asia theatre of operations and he has not asserted that his osteoporosis is related to any other in-service incident. In sum, there is no evidence of an in-service incident, or evidence linking osteoporosis to service. While the Veteran believes that his osteoporosis is related to his service in Southwest Asia, the Board reiterates that the preponderance of the evidence weighs against findings that such service occurred. As such, the Board must find that service connection for osteoporosis, also claimed as bone density and osteoarthritis, is not warranted. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for exposure to molds The Veteran seeks service connection for exposure to molds. The Board notes that the Veteran has not articulated any specific disabilities that he has as a result of his claimed exposure to molds. It is important to understand that “exposure to molds,” in and of itself, is not a “disability” for VA compensation purposes. VA regulations do not contain provisions authorizing benefits paid to veterans for exposure to molds or other contaminants without an underlying disability. Although such exposure may lead to a disability, the exposure itself is not a disability. 38 C.F.R. § 3.303(a). The Board thus finds that the Veteran’s claim for exposure to molds is not a current disability suffered by the Veteran for VA compensation purposes, and service connection must therefore be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (In a case where the law is dispositive of the claim, the claim should be denied for lack of legal merit under the law). 4. Entitlement to service connection for small pox, claimed as due to exposure to herbicides, and as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117 The Veteran has generally asserted that he has small pox due to exposure to herbicides and as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Again, as the Veteran did not serve in the Southwest Asia Theatre of operations, the presumptive regulations pertaining to an undiagnosed illness or other qualifying chronic disability under 38 C.F.R. § 3.317 are not applicable. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Moreover, the evidence of record shows that the Veteran had no actual duty in, or that he visited the Republic of Vietnam, at any time during the period of January 9, 1972 to May 7, 1975. Rather, the Veteran’s service was many years later and again, he did not have any foreign service. Thus, the Board finds that the probative evidence of record fails to demonstrate service in the Republic of Vietnam and, as such, the Veteran may not be presumed to have been exposed to herbicides coincident with such service. See 38 U.S.C. § 1116(f). Furthermore, the record does not otherwise show, that he was exposed to herbicides at any other point during his military service. Thus, the Board finds that the presumptive regulations regarding exposure to herbicides (Agent Orange) are not applicable in this case. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Additionally, there is no basis to award service connection on a direct basis. The Veteran’s service treatment records are silent as to any findings of small pox. Moreover, post service clinical records are also silent with respect to any findings of small pox. Importantly, the Veteran has primarily claimed that his small pox is due exposure to herbicides and his service in Southwest Asia. Again, the preponderance of the evidence clearly shows that the Veteran was not exposed to herbicides while in service and did not serve in the Southwest Asia theatre of operations. The Veteran has not asserted that his small pox is related to any other in-service incident. In sum, there is no evidence of an in-service incident, or evidence linking small pox to service. While the Veteran believes that his small pox is related to exposure to herbicides and his service in Southwest Asia, the Board reiterates that the preponderance of the evidence weighs against findings that such exposure occurred. As such, the Board must find that service connection for small pox is not warranted. In arriving at the decision to deny this claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 5. Entitlement to service connection for exposure to anthrax and exposure to asbestos The Veteran seeks service connection for exposure to anthrax, which he appears to be claiming was due to exposure to asbestos. The Board notes that the Veteran has not articulated any specific disabilities that he has as a result of his claimed exposure to anthrax and asbestos. It is important to understand that “exposure to anthrax and asbestos,” in and of itself, is not a “disability” for VA compensation purposes. VA regulations do not contain provisions authorizing benefits paid to veterans for exposure to anthrax or asbestos without an underlying disability. Although such exposure may lead to a disability, the exposure itself is not a disability. 38 C.F.R. § 3.303(a). The Board thus finds that the Veteran’s claim for exposure to anthrax and asbestos is not a current disability suffered by the Veteran for VA compensation purposes, and service connection must therefore be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (In a case where the law is dispositive of the claim, the claim should be denied for lack of legal merit under the law). 6. Entitlement to service connection for busted arteries, vessels and veins The Veteran has generally asserted that he has busted arteries, vessels and veins due to service. He indicated that after service, he received some sort of shots that busted his arteries, vessels and veins. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records are silent as to any findings of busted arteries, vessels and veins. Moreover, post-service clinical records are also silent with respect to any such findings. Significantly, at the Board hearing, the Veteran himself indicated that he began having problems after service. In sum, there is no evidence of an in-service incident or evidence linking busted arteries, vessels and veins to service. While the Veteran believes that his busted arteries, vessels and veins is related to his service, the Board reiterates that the preponderance of the evidence weighs against findings any in-service injury, event or disease. As such, the Board must find that service connection for busted arteries, vessels and veins is not warranted. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to service connection for a low back disorder; sciatica, claimed as due to exposure to radiation; a right knee disorder, to include damage meniscus and torn ligaments, bilateral heel spurs; damaged sex organs, to include erectile dysfunction; and a respiratory disorder, to include walking pneumonia and bronchitis, claimed as due to exposure to radiation and as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117 are remanded. At the Board hearing, the Veteran identified relevant outstanding private treatment records, to include Dr. C, Dr. B.L., Dr. S, Roseland Hospital, Ingalls Hospital, and Metro Hospital. A remand is required to allow VA to obtain authorization and request these records. The Veteran has also reported receiving continuing treatment at the VA. Thus, additional VA clinical records from June 2016 to the present should also be obtained. The Veteran was afforded a VA examination in July 2013 to address the etiology of his bilateral heel spurs given that he experienced heel pain in service. The examiner opined that the Veteran’s bilateral heel spurs were less likely as not incurred in service because there was no documented continuum of care. However, the Veteran has reported ongoing care as well as continuing symptoms. As such, it does not appear that the examiner considered all the relevant evidence and thus, this examination with opinion is inadequate for appellate review. With respect to the Veteran’s low back disorder with associated sciatica, right knee disorder, to include damage meniscus and torn ligaments and damaged sex organs, to include erectile dysfunction, the Board cannot make a fully-informed decision on these issues because no VA examiner has opined whether such disorders are related to service. At the Board hearing, the Veteran reported injuring his back and right knee in service. Moreover, service treatment records show complaints of chest congestion and a diagnosis of bronchitis. Given that the Veteran has reported incurring these disorders in service and receiving treatment for such disorders since service, the Board finds that the Veteran should be afforded an appropriate VA examination. Entitlement to service connection for bloody blisters, boils and bumps and entitlement to an initial compensable rating for tinea pedis, with tinea cruris, also claimed as fungal fungus and skin rashes are remanded. The Veteran has not been afforded a VA examination to determine the severity of his service-connected skin disability. Moreover, at the Board hearing, the Veteran asserted that his claim for bloody blisters, boils and bumps are part and parcel of his service-connected skin disorder. Thus, the Board cannot make a fully-informed decision on the issue of whether an initial higher rating is warranted for the Veteran’s service-connected skin disorder. In turn, a remand is required to afford the Veteran a VA examination. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. C, Dr. B.L., Dr. S, Roseland Hospital, Ingalls Hospital, and Metro Hospital and any other outstanding private records. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from June 2016 to the present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disorder with associated sciatica, right knee disorder, to include damaged meniscus and torn ligaments, bilateral heel spurs, and damaged sex organs, to include erectile dysfunction. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected tinea pedis, with tinea cruris, also claimed as fungal fungus and skin rashes. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must also opine whether it is at least as likely as not that the Veteran’s claimed bloody blisters, boils and bumps are part and parcel of, proximately due to, or aggravated by his service-connected skin disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s skin disorder alone and discuss the effect of the Veteran’s skin disorder on any occupational functioning and activities of daily living. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.N. Moats