Citation Nr: 18140800 Decision Date: 10/09/18 Archive Date: 10/05/18 DOCKET NO. 18-36 286 DATE: October 9, 2018 ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for diabetic neuropathy is denied. Entitlement to service connection for heart disease is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for erectile dysfunction (ED) is denied. Entitlement to service connection for a bilateral knee disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran did not step foot in the Republic of Vietnam, had other qualifying service, and was not otherwise exposed to an herbicide agent while on active duty. 2. The preponderance of the evidence shows that diabetes mellitus, diabetic neuropathy, heart disease, hypertension, erectile dysfunction, and a bilateral knee disability were not present in service or until many years thereafter, are not related to service or to an incident of service origin, and were not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, diabetic neuropathy, heart disease, hypertension, erectile dysfunction, and a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1101, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.203, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Navy from December 1963 to December 1967. The Service Connection Claims The Veteran claims, in substance, that he is entitled to service connection for diabetes mellitus, diabetic neuropathy, heart disease, hypertension, erectile dysfunction, and a bilateral knee disability because they were caused by his military service, including his in-service exposure to Agent Orange. Specifically, in his writing to the Veterans' Administration (VA) the Veteran reported that he was exposed to Agent Orange while serving on the U.S.S. Franklin Delaware Roosevelt (FDR) as an Airman from 1966 to 1967 when the ship was conducting combat air operations into the Republic of Vietnam from the waters off the Republic of Vietnam. He claims he was exposed at that time because his duties included offloading unfired missiles from aircraft that came back from flying missions over the Republic of Vietnam. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The requirement of a current disability is “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.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus 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, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of applying the herbicide presumption, “service in Vietnam” includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to a current disability, the post-service record shows the Veteran being diagnosed with type 2 diabetes mellitus, diabetic neuropathy, coronary artery disease, ischemic heart disease, hypertension, erectile dysfunction, and bilateral knee replacements. See, e.g., records from American Health Network dated in January 2013, August 2013, and August 2015; St. Vincent Medical Group dated in July 2015. Additionally, the Boards finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of his disabilities, such as being thirsty, pain, shortness of breath, etc… See Davidson, supra. The Board also notes that records show that the Veteran served on the U.S.S. FDR as an Airman from 1966 to 1967. Publicly available record also show that the U.S.S. FDR conducted combat air operations into the Republic of Vietnam from 1966 to 1967. As to the herbicide exposure presumptions under 38 C.F.R. § 3.309(e), the Veteran does not claim, and official service department records do not show, the Veteran ever stepped foot in the Republic of Vietnam during the Vietnam War or had other qualifying service. See service personnel records received from National Personnel Records Center. The Board is bound by service department findings. See 38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet. App. 376, 380 (2000) (VA is bound by service department findings); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) (“service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces”). Therefore, the Board finds that the Veteran is not entitled to a presumption of herbicide exposure. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). As to proof of actual herbicide exposure, the Veteran’s only claim as to the circumstances under which he was exposed to herbicide agents while on active duty is his claim that he was exposed by off-loading unfired missiles from aircraft that came back from flying missions over the Republic of Vietnam. However, he has not given VA any evidence to support this claim. And, as reported above, official service department records do not support his assertions as to herbicide exposure and the Board is bound by service department findings. See 38 C.F.R. § 3.203; Spencer, supra; Duro, supra. Further, VA has found that even if he had flown on aircraft that flew into the Republic of Vietnam’s airspace, there is no presumption of exposure. See VAOPGCPREC 7-93. Given the negative records, the Board finds that the preponderance of the evidence is against the claim by the Veteran that he had actual exposure to an herbicide agent while on active duty. See Owens, supra. Simply stated, the above facts would not give the Veteran the presumption of exposure required under the law (very generally, the need to be on the ground in Vietnam). Without the legal presumption of exposure, the Veteran’s claims fail. As to establishing service connection for diabetes mellitus, diabetic neuropathy, heart disease, hypertension, erectile dysfunction, and a bilateral knee disability based on proof of direct causation (see Stefl, supra), service treatment records, including the November 1967 separation examination, are negative for complaints of symptoms and/or diagnoses of any of the claimed disorders. See Colvin, supra; also see 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Hensley, supra. In fact, the November 1967 separation examination reported that the Veteran’s sugar was negative, his blood pressure was 124/84, and his heart as well as his lower extremity examinations were normal. The record also does not show the Veteran being diagnosed with any of the claimed disorders in the first post-service year. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Similarly, the record does not show that the Veteran had a continued problem with diabetes mellitus, diabetic neuropathy, heart disease, hypertension, erectile dysfunction, and a bilateral knee disability in and since service. In fact, as reported above, service treatment records including the November 1967 separation examination are negative for complaints, diagnoses, or treatment for these disorders. Likewise, the post-service record is negative for a history, complaints, or a diagnosis of them until decades after service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). Furthermore, the Board finds that the record does not show that the Veteran’s diabetes mellitus, diabetic neuropathy, heart disease, hypertension, erectile dysfunction, and a bilateral knee disability are due to his military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, the Board finds that the criteria to provide the Veteran with VA examinations to obtain etiology opinions have not been met because the record does not document the his complaints, diagnoses, or treatment for any of the claimed disorders in-service or for decades after service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). In addition, the Board finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide answers to these complex medical questions. See Davidson, supra. Lastly, the Board finds that the record does not show that the Veteran’s diabetes mellitus, diabetic neuropathy, heart disease, hypertension, erectile dysfunction, and a bilateral knee disability are caused or aggravated by a service-connected disability because he is not service-connected for any disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.310; also see Allen, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claims of service connection for diabetes mellitus, diabetic neuropathy, heart disease, hypertension, erectile dysfunction, and a bilateral knee disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claims, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel