Citation Nr: 18141826 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-20 258 DATE: October 11, 2018 ORDER New and material evidence having been received, the Veteran's claim for service connection for coronary artery disease is reopened. Entitlement to service connection for coronary artery disease is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. FINDINGS OF FACT 1. The Veteran's original claim for service connection for coronary artery disease, status-post anterior non-Q wave myocardial infarction was denied in an August 1999 Board decision. 2. Subsequent petitions to reopen the Veteran's claim for service connection for coronary artery disease were denied in November 2005 and June 2009 rating decisions. 3. Evidence added to the record since the previous June 2009 rating decision that denied the Veteran's petition to reopen his claim for service connection for coronary artery disease is new and material and raises a reasonable possibility of substantiating the Veteran's claim. 4. The Veteran was not, and may not be presumed as having been, exposed to herbicides during active duty service. 5. The Veteran's coronary artery disease was not incurred during his period of active duty service or during a period of ACDUTRA; did not result from an injury, illness, or event that occurred during active duty service or a period of ACDUTRA; and was not aggravated beyond its natural progression by any periods of ACDUTRA. 6. The Veteran's diabetes mellitus, type II was not incurred during his period of active duty service or during a period of ACDUTRA and did not result from an injury, illness, or event that occurred during active duty service or a period of ACDUTRA. CONCLUSIONS OF LAW 1. The criteria for reopening the Veteran's claim for service connection for coronary artery disease are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 2. The criteria for service connection for coronary artery disease are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307(a)(6), 3.309(a), (e), 3.310 (2017). 3. The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307(a)(6), 3.309(a), (e), 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from February 1971 through March 1973 as well as periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) during United States Naval Reserve service from March 1973 through August 1996. Reopening Claims Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105 (2012). Under 38 U.S.C. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156 (a), "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence was received to reopen a claim for service connection for coronary artery disease. The Veteran's original claim for service connection for coronary artery disease was received by VA in September 1996. The claim was ultimately denied in an August 1999 Board decision. The Board observed that the Veteran was not alleging that his coronary artery disease was related to his period of active duty from February 1971 through March 1973, but rather, was asserting that it was related to a period of Reserve training in July 1996. Based on review of the available service department records, the Board noted that the Veteran had a period of ACDUTRA from July 13, 1996 through July 26, 1996 and a period of INACDUTRA from July 27, 1996 through July 31, 1996. Notwithstanding the Veteran's assertions, the Board determined that the evidence showed that the Veteran's coronary artery disease was diagnosed on August 2, 1996, more than 20 years after his separation from active duty in 1973 and two days after the conclusion of his period of INACDUTRA on July 31, 2006. Moreover, the Board determined that the Veteran's coronary artery disease was not the result of an injury. Hence, service connection was not warranted because the controlling laws and regulations did not provide for service connection for a disease that was incurred during or aggravated by a period of INACDUTRA. 38 U.S.C. § 101(24), 1110, 1131; 38 C.F.R. §§ 3.6(a), 3.6(e). Additionally, the Board determined that the evidence showed that the Veteran's coronary artery disease pre-existed his period of ACDUTRA from July 13, 1996 through July 26, 1996. In that regard, the Board was persuaded by a July 1997 opinion from Dr. C.R.M., who opined that it was medically impossible for coronary lesions noted at that time not to have existed prior to July 14, 1996. Also citing findings expressed in Dr. C.R.M.'s report, the Board determined that the chest pain that was reported by the Veteran during ACDUTRA did not represent an acute myocardial event or permanent aggravation of the pre-existing coronary artery disease. Based on the foregoing, the Board determined that the evidence did not show the existence of a nexus between the Veteran's coronary artery disease and his period of ACDUTRA. The Veteran subsequently filed multiple petitions seeking to reopen his claim for service connection for coronary artery disease. A petition received from the Veteran in August 2004 was denied in a November 2005 rating decision on the bases that the evidence assembled at that time still did not show that the Veteran's coronary artery disease was aggravated during his period of ACDUTRA. Also, to the extent that the Veteran argued in support of his petition that his coronary artery disease resulted from his diabetes, the RO determined also that the evidence did not show that the Veteran's diabetes was itself related etiologically to his period of active service or ACDUTRA. A subsequent petition received from the Veteran in July 2007 was also denied in a June 2009 rating decision on the same bases. The Veteran did not appeal the June 2009 decision. Hence, that decision is final. 38 U.S.C. § 7105 (c) (2012). The petition to reopen giving rise to this appeal was received in May 2010. A November 2010 rating decision reopened the Veteran's claim but denied service connection for coronary artery disease based on the merits of the evidence. Notwithstanding the RO's decision to reopen the Veteran's claim, the Board is compelled to consider here on appeal whether new and material evidence was received to reopen the Veteran's claim. The Veteran contends in claims submissions received in April and November of 2009 that his coronary artery disease may be related to purported herbicide exposure that occurred during service in Vietnam. He asserts that he had service on board the U.S.S. O'Hare, which he states was deployed to the waters around Vietnam and anchored for periods in Da Nang Harbor. He states that while the ship was anchored in Da Nang Harbor, he went ashore to perform duties of loading and unloading supplies from the ship and connecting power lines and steam lines. Based on the foregoing, the Veteran asserts that he was presumably exposed to herbicides during his period of active duty service. 38 C.F.R. § 3.307(a)(6)(iii) (2017). Alternatively, he argues in a March 2011 statement that even if the evidence does not show that he went ashore in Vietnam to perform duties, his proximity to the coast of Vietnam while on the U.S.S. O'Hare should be sufficient to establish herbicide exposure. The Veteran's assertions concerning herbicide exposure raise facts and information that are new and material and raise a reasonable possibility of substantiating the Veteran's claim. New and material evidence concerning the Veteran's claim for service connection for coronary artery disease has been received. That claim is reopened and will be considered next on a de novo basis. Service Connection Generally, service connection will be granted if the evidence shows that a current disability resulted from an injury or disease that was incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Service connection requires an evidentiary showing of three essential elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a) (2017). Service connection for certain listed chronic diseases, such as diabetes mellitus and cardiovascular diseases, may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service, if such disability became manifest to a compensable degree within one year of separation from active duty. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (a) (2017). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309 (a) is through an evidentiary showing of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b) (2017). Also, 38 C.F.R. § 3.309 (e) identifies specific diseases that shall be service-connected for those veterans who were exposed to an herbicide agent during active military, naval, or air service, even in the absence of any record of such disease occurring during service, provided that certain requirements under 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, and provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. The diseases listed under 38 C.F.R. § 3.309 (e) include diabetes mellitus and ischemic heart disease. Service connection may also be granted for a disease that was first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303 (d) (2017). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or alternatively, whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b) (2017). 1. Entitlement to service connection for coronary artery disease. The Veteran has raised various theories in support of his claim for service connection for coronary artery disease. In his original September 1996 claim, he asserted that he had a heart attack in August 1996 and that it was a manifestation of coronary artery disease incurred during his period of ACDUTRA the previous month. In furtherance of that theory, he submitted November 2004 lay statements from his service buddies, M.S. and A.T., both of whom assert that they witnessed the Veteran complaining of chest pain and nausea during field exercises. Alternatively, the Veteran also suggests that his coronary artery disease may have resulted from in-service herbicide exposure. To that end, he asserts in March 2005 and April 2009 statements that he served on board the U.S.S. O'Hare from December 1972 through March 1973 and that the ship was deployed to the waters around Vietnam during that time. He recalls that the ship conducted patrols near Vietnam's coastline and provided supporting gunfire for combat operations on the Vietnamese mainland. He asserts also that the U.S.S. O'Hare dropped anchor in Da Nang Harbor and that he was among the sailors who were required to go ashore to load supplies and connect power lines and steam lines while the ship was docked. He states also that he was permitted to take shore leave to go on land at Da Nang. Preliminarily, the Board concludes that there is no affirmative evidence in the record that the Veteran was exposed to herbicides during service. The Board concludes also that the Veteran did not perform any duties on land in Vietnam and therefore may not be presumed as having been exposed to herbicides during service. The regulations provide that veterans who served in the Republic of Vietnam within the period from January 9, 1962 through May 7, 1975 shall be presumed as having been exposed during that service to herbicide agents such as Agent Orange. That presumption is rebuttable by contrary evidence that shows that the veteran was not exposed to herbicides during service. Of particular importance, service in the Republic of Vietnam includes specifically service in the waters offshore and service in other locations, but only if the conditions of service involved duty or visitation within the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii) (2017). VA has determined that the presumption of Agent Orange exposure for veterans who "served in the Republic of Vietnam" is limited to veterans who served on or visited the Vietnamese landmass or its inland waterways, and does not apply to veterans who served exclusively offshore in ocean-going ships, i.e., the "blue water" Navy. See 38 C.F.R. § 3.313 (a) (2017); VAOPGCPREC 27-97 (mere service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not constitute "Service in the Republic of Vietnam" for purposes of 38 U.S.C. § 101 (29)(A)); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008). Service treatment records and personnel records pertaining to the Veteran's period of active duty from February 1971 through March 1973 are not available. In instances where service department records are unavailable, the Board is under a heightened obligation to explain its findings and to carefully consider application of "the benefit-of-the-doubt rule." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). Under the "benefit-of-the-doubt rule," when there is a proximate 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 and find in his or her favor as to that issue. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). The Board points out that the unavailability of service department records does not lower the legal standard for proving a case of service connection; it simply increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran's DD Form 214 reflects that the Veteran did have service on board the U.S.S. O'Hare. Although that information is certainly consistent with the Veteran's assertions that he participated in combat support missions while on board the U.S.S. O'Hare, it does not corroborate the assertion that the Veteran was ever required to go ashore to Vietnam to perform duties or that he was ever permitted to go on leave or other visitation to Vietnam. Ship's histories and deck logs submitted by the Veteran and uncovered by the Joint Services Records Research Center (JSRRC or CURR) corroborate that the U.S.S. O'Hare performed regular patrols in the waters near Vietnam and even that it made brief stops at Da Nang Harbor on January 14, 1973 and January 31, 1973. Still, neither the ship's histories nor the research conducted by JSRRC corroborate that the Veteran ever went ashore. In a May 2009 memorandum, JSRRC notified VA that although ship's records document that a harbor transportation boat was sent ashore to pick up mail and transient personnel, those records do not identify the Veteran as being among those sailors who were sent to perform those duties. Other information uncovered by JSRRC seems to cast further doubt on the Veteran's assertion that he was sent ashore. In that regard, records showed that the U.S.S. O'Hare was in Da Nang Harbor for less than three hours on the morning of January 14, 1973 and for only two hours on the evening of January 31, 1973. Given the brief duration of those stops, it is unlikely that the Veteran or other sailors would have been permitted to take shore leave. Ship's histories, ship's logs, and other information obtained by JSRRC and/or provided by the Veteran do not indicate that any sailors other than those sent to perform the aforementioned specific duties were permitted to go ashore. Similarly, the Veteran's assertion that he was permitted to take shore leave at Da Nang is not supported by any buddy statements. In conjunction with all of the above, there is no evidence that the U.S.S. O'Hare, a destroyer warship, was ever deployed to the inland waterways. Although the evidence shows that the U.S.S. O'Hare did conduct patrols and provide gunfire support near the Vietnamese coast, there is insufficient other information in the record to bring the weight of evidence concerning the question of herbicide exposure into relative equipoise. The weight of the evidence in the record is against finding that the Veteran had service in Vietnam or that he was exposed to herbicides during his duties on the U.S.S. O'Hare. As such, the Veteran is not entitled to the presumption that he was exposed to herbicide agents during his active duty service. The Veteran does not contend, nor does the evidence show, that his coronary artery disease began or was diagnosed within a year form his separation from active duty in March 1973. He appears to assert in his claims submissions that he experienced symptoms of chest pain, joint pain, and nausea while participating in field training exercises during ACDUTRA, only days before having a myocardial infarction and being diagnosed with coronary artery disease on August 1, 1996. Hence, he suggests that the symptoms he experienced during ACDUTRA were manifestations of coronary artery disease and is entitled on that basis to service connection. His assertions are supported by buddy statements received in November 2004 from M.S. and A.T., who attest that they recall that the Veteran was removed from the field for treatment of chest pain, joint pain, and nausea. Of particular relevance, service department orders in the file show that the Veteran had a period of ACDUTRA from July 13, 1996 through July 25, 1996 and a period of INACDUTRA from July 26, 1996 through July 31, 1996. Service treatment records and private treatment records from Knapp Medical Center and Valley Baptist Medical Center show that the Veteran was hospitalized on August 1, 1996 for an anterior non-Q wave myocardial infarction and diagnosed during subsequent follow-up private and VA treatment with coronary artery disease. Still, those records offer no opinions as to whether the Veteran's coronary artery disease is related in any way to his active duty service or subsequent periods of ACDUTRA. In July 1997, the Veteran's file was reviewed by a VA clinician, Dr. C.R.M. In a corresponding report, Dr. C.R.M. noted that the Veteran did complain of interscapular back pain that radiated into his upper extremities during ACDUTRA, only five days before he was hospitalized on August 1, 1996 for treatment for a myocardial infarction. Dr. C.R.M. observed that the hospital records noted a non-sustained episode of ventricular tachycardia. Echocardiogram studies showed no signs of acute ischemic changes, although cardiac catheterization did reveal multiple coronary artery lesions. Dr. C.R.M. observed that coronary artery blockages take many months or years to develop. As such, he opined that it is medically impossible for the lesions noted in the catheterization to not have been present prior to the Veteran's period of ACDUTRA from July 13, 1996 through July 26, 1996. Regarding the Veteran's reported symptoms during ACDUTRA, Dr. C.R.M. opined that those were temporary symptoms of the pre-existing underlying disease rather than manifestations of an acute myocardial event or permanent aggravation. As rationale, Dr. C.R.M. noted that the August 1996 hospital progress notes referenced "unstable angina" which he explains is a common term used to describe recurrent chest pains that are due to underlying coronary artery disease. Records for subsequent VA and private treatment received by the Veteran through June 2018 show that he was followed for ongoing and progressing coronary artery disease. Stress tests conducted in April 2008 at Knapp Medical Center showed low left ventricular ejection fractions and evidence of ischemia. The Veteran underwent a quadruple coronary artery bypass procedure. More recent VA treatment records from 2018 document ongoing progression of the Veteran's coronary artery disease and that another open heart procedure was being planned. Nonetheless, these records contain no new opinions or any findings that contradict those expressed in Dr. C.R.M.'s report. While the Veteran has expressed his earnest belief that his coronary artery disease is related in some way to symptoms experienced during ACDUTRA, he is not competent to provide a nexus opinion in this case. That question is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical tests and findings. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In contrast, the negative opinion given by Dr. C.R.M. in the July 1997 report is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Indeed, Dr. C.R.M.'s conclusions are not rebutted by any contrary findings or opinions in the record. The preponderance of the evidence shows that the Veteran was not exposed to herbicides during his active duty service. As such, service connection for coronary artery disease may not be granted presumptively on the basis of herbicide exposure pursuant to 38 C.F.R. § 3.309 (e). In conjunction with the same, the weight of the evidence shows also that the Veteran's coronary artery disease was not sustained during his period of active duty service, within a year from his separation from service in 1973, or during any subsequent periods of ACDUTRA. Although the evidence shows that the Veteran's coronary artery disease was diagnosed within days from his period of ACDUTRA from July 13, 1996 through July 25, 1996, presumptive service connection is not applicable to any of his periods of ACDUTRA or INACDUTRA because he did not serve 90 days of active continuous service during those periods of training. 38 C.F.R. § 3.307(a)(1) (2017). Moreover, Dr. C.R.M.'s unrebutted negative findings and opinions show that the Veteran's coronary artery disease pre-existed the Veteran's period of ACDUTRA from July 13, 1996 through July 25, 1996, and was not aggravated beyond its normal progression during the period of ACDUTRA. To that end, he determined that it is "medically impossible" that the coronary artery disease findings noted during in August 1996 were not present prior to the Veteran's period of ACDUTRA. He expressed unequivocally that the symptoms reported by the Veteran during his period of ACDUTRA were no more than temporary symptoms of the pre-existing coronary artery disease and did not represent an acute event or permanent aggravation. The Veteran is not entitled to service connection for coronary artery disease. To that extent, this appeal is denied. 2. Entitlement to service connection for diabetes mellitus, type II. The Veteran asserts primarily that he has diabetes that resulted from purported herbicide exposure during his active duty service. As discussed in detail above, the preponderance of the evidence shows that the Veteran was not exposed to herbicides during service and that he did not have service in Vietnam and therefore may not be presumed as having been exposed to herbicides during service. As such, service connection for the Veteran's diabetes cannot be granted presumptively based on herbicide exposure under 38 C.F.R. § 3.309 (e). Although the Veteran has not raised other express theories to support his claim, the Board remains compelled to consider other theories for service connection, to include as on a direct basis pursuant to 38 C.F.R. § 3.303 (a). To that end, the service treatment records from the Veteran's Reserve service are silent for any findings, diagnoses, or treatment related to diabetes. Indeed, post-service treatment records show that the Veteran was first diagnosed with diabetes mellitus during private treatment in December 1996 at Valley Baptist Medical Center. An October 2004 VA treatment references "newly diagnosed" diabetes mellitus, however, does not recognize or acknowledge the previous 1996 private diagnosis. To that end, the October 2004 VA treatment record appears to corroborate the earlier diagnosis. Subsequent VA and private treatment records show that the Veteran has been followed for diabetes which has been managed essentially by medication. Nonetheless, those records provide no opinion as to the cause, time of onset, or duration of the Veteran's diabetes. Overall, the evidence shows that the Veteran's diabetes was first diagnosed in December of 1996, decades after the Veteran's period of active duty service. As such, service connection for the Veteran's diabetes may not be granted based on the presumption provided under 38 C.F.R. § 3.309 (a). Although the evidence shows that the Veteran's diabetes was diagnosed only months after his documented periods of ACDUTRA and INACDUTRA, the Board again notes that presumptive service connection under 38 C.F.R. § 3.309 (a) is not applicable to any of his periods of ACDUTRA or INACDUTRA because he did not serve 90 days of active continuous service during those periods of training. 38 C.F.R. § 3.307(a)(1) (2017). Based on the same facts, the Board concludes also that the Veteran's diabetes was not incurred during the Veteran's active duty service from February 1971 through March 1973. In conjunction with the same, there are simply no facts or findings in the evidence that even suggests the existence of an etiological relationship between the Veteran's diabetes and his active duty service and/or periods of ACDUTRA or INACDUTRA. Given the same, there is no basis in the record upon which to award service connection for diabetes. The Board recognizes that VA has not afforded the Veteran a diabetes mellitus examination or obtained a medical record review and opinion as to the etiology of the Veteran's diabetes. VA must provide a medical examination only where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is simply no probative evidence in the record that even suggests that the Veteran's diabetes is related etiologically to his active duty service or periods of Reserve training. Given the same, the Board finds that an examination or medical opinion is not necessary for this appeal. 38 C.F.R. § 3.159 (c)(4) (2017). The Veteran is not entitled to service connection for diabetes mellitus, type II. To that extent also, this appeal is denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Lee, Counsel