Citation Nr: 18144982 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 17-52 804 DATE: October 25, 2018 ORDER 1. Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to herbicides, insecticides and other toxins, is denied. 2. Entitlement to service connection for a cardiac disability, diagnosed as coronary artery disease, claimed as due to exposure to herbicides, insecticides and other toxins, is denied. 3. Entitlement to service connection for prostate cancer, claimed as due to exposure to herbicides, insecticides and other toxins, is denied. 4. Entitlement to service connection for a right foot disability, diagnosed as diabetic peripheral neuropathy, claimed as due to exposure to herbicides, insecticides and other toxins, is denied. 5. Entitlement to service connection for a left foot disability, diagnosed as diabetic peripheral neuropathy, claimed as due to exposure to herbicides, insecticides and other toxins, is denied. 6. Entitlement to service connection for a skin disability of the feet and legs, diagnosed as tinea pedis and dry skin, claimed as due to exposure to herbicides, insecticides and other toxins, is denied. 7. Entitlement to service connection for bilateral hearing loss is denied. 8. Entitlement to service connection for a back disability is denied. 9. Entitlement to service connection for a right knee and leg disability is denied. 10. Entitlement to service connection for a left knee and leg disability is denied. FINDINGS OF FACT 1. The Veteran is not presumed to have been exposed to herbicides, to include Agent Orange, during his active military service. 2. The weight of the evidence reflects that the Veteran's diabetes mellitus, type II, had its clinical onset many years after his separation from service and is unrelated to any incident therein, including claimed exposure to herbicides, insecticides and various toxins. 3. The weight of the evidence reflects that the Veteran's cardiac disability, diagnosed as coronary artery disease, had its clinical onset many years after his separation from service and is unrelated to any incident therein, including claimed exposure to herbicides, insecticides and various toxins. 4. The weight of the evidence reflects that the Veteran's prostate cancer had its clinical onset many years after his separation from service and is unrelated to any incident therein, including claimed exposure to herbicides, insecticides and various toxins. 5. The weight of the evidence reflects that the Veteran's right foot disability, diagnosed as diabetic peripheral neuropathy, is not attributable to service or to a service-connected disability. 6. The weight of the evidence reflects that the Veteran's left foot disability, diagnosed as diabetic peripheral neuropathy, is not attributable to service or to a service-connected disability. 7. The weight of the evidence reflects that the Veteran's skin disability of the feet and legs, diagnosed as tinea pedis and dry skin, had their clinical onset many years after his separation from service and are unrelated to any incident therein, including claimed exposure to herbicides, insecticides and various toxins. 8. The weight of the evidence reflects that the Veteran's bilateral hearing loss had its clinical onset many years after his separation from service and is unrelated to any incident therein. 9. The weight of the evidence reflects that the Veteran's claimed back disability, manifested by pain, had its clinical onset many years after his separation from service and is unrelated to any incident therein. 10. The weight of the evidence reflects that the Veteran's claimed right knee and leg disability, manifested by pain, had its clinical onset many years after his separation from service and is unrelated to any incident therein. 11. The weight of the evidence reflects that the Veteran's claimed left knee and leg disability, manifested by pain, had its clinical onset many years after his separation from service and is unrelated to any incident therein. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a cardiac disability, diagnosed as coronary artery disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for a right foot disability, diagnosed as diabetic peripheral neuropathy, have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for a left foot disability, diagnosed as diabetic peripheral neuropathy, have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 6. The criteria for service connection for a skin disability of the feet and legs, diagnosed as tinea pedis and dry skin, have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 7. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 8. The criteria for service connection for a lumbar spine disability, manifested by back pain, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 9. The criteria for service connection for a right knee and leg disability, manifested by knee pain, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 10. The criteria for service connection for a left knee and leg disability, manifested by knee pain, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1953 to March 1955 and from April 1955 to December 1956. His military occupational specialty was a cook. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran’s representative submitted additional evidence on behalf of the Veteran which was after the October 2017 issuance of the Statement of the Case. However, that evidence was accompanied by a written waiver of review by the Agency of Original Jurisdiction (AOJ) in the first instance. 38 C.F.R. 20.1304(c). A January 2017 report of General Information shows that the Veteran requested a hearing before a Decision Review Office; however, he subsequently withdrew this request in writing in March 2017. Law and Regulations 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 generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303 (b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). 38 U.S.C. § 1101. These disabilities include DM, cardiovascular-renal disease, and organic diseases of the nervous system (including hearing loss). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Additionally, certain chronic diseases, including DM, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 are met. 38 C.F.R. § 3.309. In this regard, 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 OR who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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 (a)(6)(iv). Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), 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 also stable, unstable and Prinzmetal's angina), early-onset peripheral neuropathy, and prostate cancer, are included in the list of diseases associated with exposure to herbicides. 38 C.F.R. § 3.309 (e). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute/early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). 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). Analysis As a starting point, the Veteran’s active service from 1952 to December 1956 falls outside of the period for presumptive service connection due to herbicide exposure, including Agent Orange. 38 C.F.R. § 3.307 (a)(6)(iv). Thus, he is not presumed to have been exposed to herbicides, to include Agent Orange, while on active duty, and he is not entitled to presumptive service connection under 38 C.F.R. 3.309(e). See also VA Memorandum for Herbicide Exposure dated in February 2015. The Veteran’s representative does not disagree with this finding and in fact asserted in writing in September 2018 that it was the RO, and not the Veteran, that analyzed the claim under the regulations regarding exposure to herbicides, including Agent Orange. 38 C.F.R. 3.309(e). The above notwithstanding, the Veteran still may establish service connection for his claimed disabilities with proof of direct causation. 30 C.F.R. 3.303; Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the question for the Board is whether the Veteran has current disabilities that began during service or are at least as likely as not related to an in-service injury, event, or disease, including exposure to claimed herbicides, insecticides and toxins. Unfortunately, the Veteran’s service treatment records are not available for review and are presumed destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. In cases where service treatment records are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with these heightened duties in mind. It is unclear what the Veteran’s service treatment records would show even if they were available since the Veteran is not claiming that he had the disabilities that he is claiming during service. Rather, he appears to be asserting that they developed after service, but are the result of his inservice exposure to non-Agent Orange herbicides and insecticides which he identified as DDT and lindane, as well as other unknown toxic substances such as toxic solvents, and various types of fuel and combustion products. The medical evidence shows that the claimed disabilities were first manifest years after service. Such evidence includes a June 2010 VA new patient record noting that the Veteran had a 20-year history of diabetes, with additional VA records showing secondary diabetic peripheral neuropathy of the lower extremities. There is also an October 2014 VA outpatient record noting that he had a 16-year history of diabetes. Although these records are not consistent in showing the precise date of onset of the Veteran’s diabetes, they both show that the onset was many years after service. The medical evidence also includes a June 2000 pathology report showing findings consistent with prostate cancer, and an October 2001 medical entry from Midlands Internal Medicine containing a diagnosis of prostate cancer with falling PSA (prostate specific antigen) levels without surgery. A subsequent prostate biopsy report in September 2014 shows an aggressive form of prostate cancer. There are also various post-service treatment records dated many years after service showing complaints of back and knee pain. These records include a March 2012 VA progress note noting that the Veteran was known to have relapsing back pain. They further include VA outpatient records in April 2016 and May 2016 showing right knee pain (thought to be possibly due to a misstep off a tractor). In addition, a July 2016 record notes that the Veteran had fallen and scraped his left knee, but he was diagnosed as having a right knee abrasion. In February 2017, he was assessed as having restless leg syndrome. As far as his claimed skin disability, the only skin condition shown in the medical records is bilateral tinea pedis assessed in February 2009 at Midlands Internal Medicine Associates. In addition, VA outpatient records show that he was prescribed a skin ointment, Vanicream, as early as June 2010 for dry skin on the feet and legs. VA outpatient records in September 2013 show that the Veteran requested an audiology referral due to hearing loss. He was evaluated by VA in October 2013 and was found to have right ear occlusion due to ear wax. He was advised to use ear drops (Debrox) and to return for irrigation. He again requested an audiology referral in December 2013 due to worsening hearing and in January 2014 he was assessed as having sensorineural hearing loss in the right and left ears that was mild to moderately severe. He reported at that time having a 10-year history of hearing loss. In February 2014, he was fitted with bilateral hearing aids. In terms of a cardiac disability, post-service medical records show that an echocardiogram was performed in 2000 due to the Veteran’s complaints of chest discomfort. He had a noted history of hyperlipidemia at that time. Results were abnormal and compatible with anterior myocardial infarct. This is consistent with an October 2014 VA outpatient record noting that he had a 16-year history of a myocardial infarction. The medical evidence further shows that the Veteran was seen in a follow up for coronary artery disease in January 2001. In March 2001, he underwent the implant of a dual-chamber implantable cardio defibrillator (ICD) (with replacement implants in February 2007 and December 2014). In July 2004, he was assessed by Midlands Internal Medicine as having cardiovascular disease complicated by ventricular arrhythmias and ischemic cardiomyopathy with implanted cardiac defibrillator. He was recently assessed in August 2017 as having stable IHD. In short, the evidence summarized above shows that the Veteran’s claimed disabilities became manifest years after his service discharge in 1956 and there is no medical evidence relating such disabilities to service. Thus, even assuming arguendo that the Veteran was exposed to various herbicides, insecticides and toxins in service as he asserts, there is no probative evidence linking such exposure to his claimed disabilities. 30 C.F.R. 3.303; Shedden, supra. In terms of affording the Veteran an examination, the Board acknowledges that with the exception of an audiological examination, the Veteran has not been afforded VA examinations regarding his presently claimed disabilities. However, the Board finds that VA examinations are not necessary in order to decide these claims. 30 U.S.C. 5103A(d); Waters v. Shinseki, 601 F. 3d 1274-1278 (Fed. Cir. 2010). In disability compensation claims, VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. McLendon v. Nicholson, 20 Vet App. 79 (2006). Here, the evidence of record does not establish that the requirements under McClendon have been met since element (3) has not been satisfied. Moreover, with respect to the Veteran’s claim for service connection for a bilateral hearing loss disability, a VA examiner in August 2017 negated a link by opining that the Veteran’s right and left sensorineural hearing loss was not at least as likely as not caused by or the result of an event in service. He explained that the Veteran's military occupational specialty carried a low probability of hazardous noise exposure. He also noted that there were insufficient audiograms to determine any shift in hearing thresholds and so, therefore, he must use the veteran's MOS as the determining factor. The Veteran’s representative asserted in written argument in September 2018 that in denying service connection for bilateral hearing loss, the AOJ ignored the Veteran’s combat experience and denied the claim solely on the basis of his MOS as a cook. However, the August 2017 VA audiological examiner acknowledged the Veteran’s exposure during the Korean war to 90 MM guns as well as his post-service noise exposure to chainsaws, mowers and heavy equipment. His etiological opinion was based on a review of the claims file, a history provided by the Veteran, and a physical examination, and he included a reasoned basis for his opinion. Absent credible evidence to the contrary, the Board is not in a position to further question the opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). As far as the Veteran’s belief that his claimed disabilities are due to exposure to herbicides, insecticides and toxins while serving in Korea, the Veteran has not demonstrated that he possesses medical knowledge and training analogous to that of a medical professional. Accordingly, he is not competent to provide an etiological opinion between his claimed exposure to inservice herbicides, insecticides and toxins and his presently claimed disabilities. See e.g., Jandreau, 492 F.3d at 1377. Thus, his opinion is not considered competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnoses or etiological opinions). In sum, because there is no competent evidence relating the claimed disabilities of diabetes mellitus, type II, a cardiac disability, diagnosed as coronary artery disease, prostate cancer, diabetic peripheral neuropathy of the right and left feet, a back disability, right and left knee and leg disabilities, a skin disability and bilateral hearing loss to service or to a service-connected disability, to include exposure to herbicides, insecticides and toxins, the Board finds that the preponderance of the evidence is against granting service connection for these claims and they are denied. See 38 C.F.R. §§ 3.303; 3.310; Combee v. Brown, 34 F.3d 1039, 1043-   1044 (Fed.Cir.1994). Moreover, the benefit of the doubt doctrine is not applicable in this case as there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert Derwinski, 1 Vet. App. 49 (1990). N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shawkey, Counsel