Citation Nr: 18148047 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-22 113 DATE: November 6, 2018 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for non-small cell carcinoma of the lung, claimed as lung cancer, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for an acquired psychiatric condition, claimed as stress, is denied. FINDINGS OF FACT 1. Right ear hearing loss is at least as likely as not causally or etiologically related to active military service. 2. The competent and probative evidence of record indicates that the Veteran’s diabetes mellitus, type II, did not manifest in service or within one year thereafter, and is not otherwise causally or etiologically related to active military service. 3. The competent and probative evidence of record indicates that the Veteran’s non-small cell carcinoma of the lung, claimed as lung cancer, did not manifest in service or within one year thereafter, and is not otherwise causally or etiologically related to active military service. 4. The competent and probative evidence of record indicates that the Veteran’s hypertension did not manifest in service or within one year thereafter, and is not otherwise causally or etiologically related to active military service. 5. The Veteran did not have a disability of an acquired psychiatric condition during the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 1137, 5103(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). 2. The criteria for entitlement to service connection for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1116, 1131, 5103(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.317 (2017). 3. The criteria for entitlement to service connection for non-small cell carcinoma of the lung, claimed as lung cancer, have not been met. 38 U.S.C. §§1101, 1110, 1111, 1112, 1113, 1116, 1131, 1137, 5103(a), 5107(b) (2012); 38 C.F.R. §§3.102, 3.303, 3.304, 3.307, 3.309, 3.317 (2017). 4. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 5103(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.317 (2017). 5. The criteria for entitlement to service connection for an acquired psychiatric condition, claimed as stress, have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 1137, 5103(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f)(3) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Vietnam era, during peacetime, and Gulf War era. The Veteran served in the United States Army from October 1970 until his honorable discharge in July 1973, from August 1979 until his honorable discharge in September 1982, and from January 1991 until his honorable discharge in July 1991. The Veteran died in January 2015. The Veteran’s widow was substituted in May 2015. Service Connection Under the relevant laws and regulations, direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(a). Direct service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Consistent with this framework, direct service connection is warranted for a disease first diagnosed after discharge 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). Under 38 C.F.R. §3.317, service connection is available on a presumptive basis for certain types of qualifying disabilities in Persian Gulf veterans with service in the Southwest Asia theater of operations. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. §1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R § 3.317(a)(1)(ii). In the case of claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Further, lay persons are competent to report objective signs of illness. A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (e.g. irritable bowel syndrome). A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. §3.317. 38 C.F.R §3.317 also allows for service connection on a presumptive basis for certain enumerated infectious diseases. 38 C.F.R. § 3.317(c). As none of the enumerated diseases are at issue in this case, the Board has omitted listing the diseases or discussing them at present. Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. §3.317(b). 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 claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the preponderance of the evidence is against the claim, the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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). 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 (50 percent probability or greater) related to an in-service injury, event, or disease. 1. Entitlement to service connection for right ear hearing loss The Veteran asserted that he was entitled to service connection for hearing loss in his right ear. Service connection for left ear hearing loss was granted in a May 2014 rating decision on the grounds that the Veteran was exposed to excessive noise in service, demonstrated a threshold shift, and had a current disability. No nexus was shown in the right ear. Service connection for tinnitus was granted in the same decision. Current testing shows a hearing loss disability on the right. Although the examiner opines such is not related to in-service noise due to a lack of in-service hearing shift, the Board finds such to be inconsistent with prior findings and rationales. Further, the VA examiner related the right ear loss at least in part to noise exposure on inactive duty as a reservist, which is then qualifying service for the benefit sought. Service connection for right ear hearing loss is warranted. 2. Entitlement to service connection for diabetes mellitus, type II The Veteran asserted that he was subjected to dangerous chemicals and gasses during his active service for Operation Desert Storm in Saudi Arabia between January and June 1991. The Veteran believed that the chemicals and gasses that he was exposed to as a result of his proximity to burn pits during Desert Storm caused his diabetes mellitus, type II. First, the Board finds that the Veteran had a current disability during the pendency of the claim; specifically, the Veteran was diagnosed with diabetes mellitus, type II in December 2008. Thus, the first element of service connection has been met. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An April 2014 VA examination showed that the Veteran had been diagnosed with diabetes mellitus, type II and prescribed oral hypoglycemic agents. See April 2014 VA Examination, pp. 15-18. Second, the Board finds that the evidence also supports a finding of an in-service event. Specifically, the Veteran was stationed in Saudi Arabia from January to May 1991 in the proximity of burn pits. See Military Personnel Record, p. 63; December 2013 Correspondence. The Board finds the Veteran’s statement is competent and credible because it is consistent with the facts and circumstances of his service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). As such, exposure to burn pits is conceded, and the second element of service connection is met for the Veteran’s diabetes mellitus, type II. The Veteran had also asserted that he served in Vietnam in the 1970s. See PTSD VA Examination, p. 3. The Veteran’s military personnel records do not reflect service in Vietnam. See Military Personnel Records. The Veteran’s representative provided a statement that they spoke to the Veteran and the Veteran confirmed that the Veteran’s military service in the 1970’s was in Germany, on Fort Carson, Colorado, and that the Veteran did not serve in Vietnam. See December 2013 Correspondence. Because both the military personnel records and the Veteran’s representative confirm that the Veteran did not serve in Vietnam, nor has any potential theory of entitlement due to Agent Orange exposure been raised, the Board has omitted discussing Agent Orange exposure at present. Although a current disability and an in-service event have been established for the Veteran’s diabetes mellitus, type II, as noted above, this is not sufficient to warrant service connection for the Veteran’s diabetes mellitus, type II. There still must be competent medical evidence of a nexus between the Veteran’s service in Saudi Arabia and his current diabetes mellitus, type II. The evidence of record preponderates against the finding of nexus. The April 2014 VA examiner opined that the Veteran’s diabetes mellitus, type II did not fall into the category of illnesses considered to be an undiagnosed illness nor was it a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. See April 2014 VA Examination, pp. 17-18. The examiner noted that there was no evidence of diabetes during the Veteran’s periods of military service nor within a few years of his Southwest Asia service; the Veteran’s onset of diabetes was more than a decade after the Veteran’s Southwest Asia service, and is not consistent with any aspect of his Southwest Asia service; there are no specific or known nexuses between exposure to the hazards of the environment of service in Southwest Asia and the subsequent development of diabetes. The examiner concluded that it is less likely than not (less than 50 percent probability) that the Veteran’s Southwest Asia service is related to the Veteran’s development of diabetes mellitus, type II. The Board has carefully considered the statements and contentions of the Veteran, but finds that the weight of the competent medical evidence is contrary to those contentions. Although the Veteran was capable of describing the history in this case as well as any symptoms, his statements cannot serve to address questions of causation or aggravation, because those are medical questions beyond the purview of lay knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the evidence of record is not sufficient to demonstrate a relationship between the Veteran’s service and his diagnosis of diabetes mellitus, type II. Accordingly, service connection for diabetes mellitus, type II, is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for non-small cell carcinoma of the lung, claimed as lung cancer The Veteran asserted that he was subjected to dangerous chemicals and gasses due to his proximity to burn pits during his active service for Desert Storm in Saudi Arabia between January and June 1991. The Veteran believed that these chemicals and gasses caused his lung cancer. First, the Board finds that the Veteran had a current disability during the pendency of the claim; specifically, the Veteran had a diagnosis of lung cancer. See September 2013 Medical Treatment Records, p. 82. Thus, the first element of service connection has been met. Holton, 557 F.3d at 1366; 38 C.F.R. §3.303(d). Second, the Board finds that the evidence also supports a finding of an in-service event. Specifically, the Veteran was stationed in Saudi Arabia during 4 months in proximity to burn pits. See Military Personnel Record, p. 63; December 2013 Correspondence. The Board finds the Veteran’s statement is competent and credible because it is consistent with the facts and circumstances of his service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). As such, exposure to burn pits is conceded, and the second element of service connection is met for the Veteran’s lung cancer. Although a current disability and an in-service event have been established for the Veteran’s lung cancer, as noted above, this is not sufficient to warrant service connection for the Veteran’s lung cancer. There still must be competent medical evidence of a nexus between the Veteran’s service in Saudi Arabia and his current lung cancer. The evidence of record preponderates against the finding of nexus. The April 2014 VA examiner opined that the Veteran’s lung cancer did not fall into the category of illnesses considered to be an undiagnosed illness nor was it a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. See April 2014 VA Examination, p. 28. The examiner noted that there was no evidence of lung disease or neoplasm during the Veteran’s periods of military service nor within a few years of his Southwest Asia service. The Veteran’s onset of lung cancer two decades later is not consistent with any aspect of his Southwest Asia service being a proximate cause of the lung cancer. There are no specific or known nexuses between exposure to the hazards of the environment of service in Southwest Asia and the subsequent development of lung cancer. The examiner concluded that it is less likely than not (less than 50 percent probability) that the Veteran’s Southwest Asia service is related to the Veteran’s development of lung cancer. In March 2016, a VA examiner provided a second opinion concerning the Veteran’s lung cancer. See March 2016 VA Examination. The second VA examiner determined that it was less likely than not (less than 50 percent probability) that the Veteran’s lung cancer incurred in or was caused by the claimed in-service injury, event, or illness. The examiner provided that the Veteran was a smoker of a pipe since the age of 17, smoking several bowls of tobacco daily until he stopped upon his diagnosis with lung cancer. The examiner explained that the risk of lung cancer correlated with the intensity and duration of pipe smoking and that although it is implied that other environmental exposures to toxins have been shown to increase the risk factor for lung cancer, no etiology is close to the relative risk factor of tobacco. The examiner concluded that it is far more likely that the Veteran’s lung cancer was caused by 44 years of smoking a pipe than burn pit exposure for 4 months in the Persian Gulf. The Board has carefully considered the statements and contentions of the Veteran, but finds that the weight of the competent medical evidence is contrary to those contentions. Although the Veteran was capable of describing the history in this case as well as any symptoms, his statements cannot serve to address questions of causation or aggravation, because those are medical questions beyond the purview of lay knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the evidence of record is not sufficient to demonstrate a relationship between the Veteran’s service and his diagnosis of lung cancer. Accordingly, service connection for lung cancer, is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for hypertension The Veteran asserted that he was subjected to dangerous chemicals and gasses due to his proximity to burn pits during his active service for Desert Storm in Saudi Arabia between January and June 1991. The Veteran believed that these chemicals and gasses caused his hypertension. First, the Board finds that the Veteran had a current disability during the pendency of the claim; specifically, the Veteran was diagnosed with hypertension in October 2005. See October 2005 Medical Treatment Records, p. 419. Thus, the first element of service connection has been met. Holton, 557 F.3d at 1366; 38 C.F.R. §3.303(d). Second, the Board finds that the evidence also supports a finding of an in-service event. Specifically, the Veteran was stationed in Saudi Arabia during 4 months in proximity to burn pits. See Military Personnel Record, p. 63; December 2013 Correspondence. The Board finds the Veteran’s statement is competent and credible because it is consistent with the facts and circumstances of his service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). As such, exposure to burn pits is conceded, and the second element of service connection is met for the Veteran’s hypertension. Although a current disability and an in-service event have been established for the Veteran’s hypertension, as noted above, this is not sufficient to warrant service connection for the Veteran’s hypertension. There still must be competent medical evidence of a nexus between the Veteran’s service in Saudi Arabia and his current hypertension. The evidence of record preponderates against the finding of nexus. The April 2014 VA examiner opined that the Veteran’s hypertension did not fall into the category of illnesses considered to be an undiagnosed illness nor was it a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. The examiner noted that there was no evidence of hypertension during the Veteran’s periods of military service nor within a few years of his Southwest Asia service. The Veteran’s onset of hypertension more than a decade later is not consistent with any aspect of his Southwest Asia service being a proximate cause of the hypertension. There are no specific or known nexuses between exposure to the hazards of the environment of service in Southwest Asia and the subsequent development of hypertension. The examiner concluded that it is less likely than not (less than 50 percent probability) that the Veteran’s Southwest Asia service is related to the Veteran’s development of hypertension. See April 2014 VA Examination, p. 15. The Board has carefully considered the statements and contentions of the Veteran, but finds that the weight of the competent medical evidence is contrary to those contentions. Although the Veteran is capable of describing the history in this case as well as any symptoms, his statements cannot serve to address questions of causation or aggravation, because those are medical questions beyond the purview of lay knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) The Board finds that the evidence of record is not sufficient to demonstrate a relationship between the Veteran’s service and his lung cancer. Accordingly, service connection for lung cancer is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for an acquired psychiatric condition, claimed as stress The Veteran asserted in his November 2013 statement in support of claim that he suffered from severe maladies, including stress. See November 2013 Statement in Support of Claim. The Board finds that the Veteran does not have a psychiatric disability during the pendency of the claim. Specifically, the Veteran did not have a diagnosis of an acquired psychiatric condition. See April 2014 VA Examination, pp. 32-33. During the VA examination, the Veteran denied having any mental health symptoms or problems, reported a good relationship with his wife, a great relationship with his children, and reported almost no stress because he had made peace with death a long time ago due to his military service. See VA Examination, p. 34. Furthermore, the Veteran denied thoughts of suicide at any time and denied wanting to harm others. Specifically, the Veteran stated during the VA examination that several people had told him that he must be crazy because of his military experiences and he wanted the VA examination to prove those people wrong and to prove that he did not have posttraumatic stress disorder. See April 2014 VA Examination pp. 32-37. Hence, the Veteran did not have an acquired psychiatric condition during the pendency of the claim. Again, in the absence of a disability during the pendency of the claim, service connection cannot be established. See Holton, 557 F.3d at 1366 (holding that entitlement to service connection requires, among other things, evidence of a current disability); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). (Continued on the next page)   Based on the foregoing, the preponderance of the evidence is against the claim for service connection for an acquired psychiatric condition, claimed as stress. The benefit-of-the-doubt doctrine is therefore not applicable, and the claim must be denied. See 38 U.S.C. § 51007(b); 38 C.F.R. § 3.102. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. DEEMER, ASSOCIATE COUNSEL