Citation Nr: 18149240 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 14-20 444 DATE: November 9, 2018 ORDER Service connection for diabetes mellitus is denied. Service connection for hypertension is denied. Service connection for arteriosclerotic heart disease (ASHD) is denied. Service connection for erectile dysfunction (ED) is denied. Service connection for obstructive sleep apnea (OSA) is denied. Service connection for major depressive disorder (MDD) is denied. REMANDED Entitlement to service connection for Parkinson's disease is remanded. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam (RVN) or the island of Guam, and it is not shown that he was otherwise exposed to defoliants during service. 2. The Veteran’s diabetes mellitus did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 3. The Veteran’s hypertension did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 4. The Veteran’s ASHD did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 5. The preponderance of the evidence is against finding that ED began during active service, or is otherwise related to an in-service injury, event, or disease or to a service-connected disease or illness. 6. The preponderance of the evidence is against finding that OSA began during active service, or is otherwise related to an in-service injury, event, or disease or to a service-connected disease or illness. 7. The preponderance of the evidence is against finding that the Veteran has MDD due to a disease or injury in service, including complaints of depression noted during service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 3. The criteria for service connection for ASHD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 4. The criteria for service connection for ED have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 5. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 6. The criteria for Service connection for MDD have not been 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, who is the appellant, served on active duty from May 1972 to March 1975. The case was remanded by the Board in January 2016 for further development of the evidence, including an additional attempt to verify the Veteran’s claimed service in the Republic of Guam in 1973 or 1974. This has been accomplished and the case has been returned for further appellate consideration. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as diabetes mellitus or coronary artery disease, including hypertension, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). “When aggravation of a veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.” Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran is claiming service connection for numerous disorders that, he asserts, are the result of his exposure to herbicide agents, including the defoliant Agent Orange, during service. While he acknowledges that he did not serve in the Republic of Vietnam (RVN) while on active duty, he has contended that he served on the island of Guam where he serviced aircraft that were utilized in the disbursement of Agent Orange. VA has fully investigated these contentions, including pursuant to the Board’s January 2016 remand, and has found no affirmative evidence that the Veteran was ever stationed on the island of Guam or evidence of exposure to herbicide agents, including Agent Orange. In this regard, it is noted that a search of the Veteran’s military personnel records does not demonstrate that he saw duty on the island of Guam during service. His certificate of release from active duty (DD-214) shows no foreign or sea service during his period of active duty. A November 2010 information request shows that there is no evidence that he was exposed to defoliants during service, a May 2011 information request shows that he did not see service in the RVN, and a March 2013 formal finding shows that there is insufficient information to corroborate service and exposure to Agent Orange herbicide at Guam or any other location where the Veteran may have served. Finally, a February 2018 formal finding shows that there is insufficient information to verify herbicide agents exposure in either Guam or RVN. Although the Veteran’s private physician has indicated that a diagnosis of pseudofolliculitis barbae (PSB) was actually a mistaken diagnosis of chloracne, one of the disease that may be presumed as due to herbicide exposure, this opinion is based upon an understanding that the Veteran served on the island of Guam. As this has not been established, the opinion is without merit. Under these circumstances, the Board finds that there is insufficient evidence to establish the Veteran’s exposure to defoliants during service. Consequently, the statutory provision specifically covering Agent Orange found at 38 U.S.C. § 1116 are not for application. Nevertheless, aside from these presumptive provisions, service connection might be established by satisfactory proof of direct service connection. See Combee v. Brown, 34 F.3rd 1039 (Fed. Cir. 1994). 1. Service connection for diabetes mellitus The Veteran contends that service connection is warranted for diabetes mellitus. 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. Review of the Veteran’s service treatment records (STRs) shows no complaints or manifestations of diabetes mellitus. VA treatment records show a diagnosis of this disorder dates from April 2005, thirty years after the Veteran’s separation from active duty. The Board concludes that, while the Veteran has a diagnosis of diabetes mellitus, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Two private practitioner medical opinions, dated in January 2012 and October 2018, have rendered opinions that the Veteran’s diabetes mellitus is at least as likely as not related to an in-service injury, event, or disease; however, the opinions are not probative because the opinions were based solely on the premise that the Veteran was exposed to defoliants including Agent Orange during service. As the Board has previously indicated, there is no supporting such a finding. As such, the preponderance of the evidence is against a finding that the exposure occurred. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). While the Veteran is competent to report that he did sustain such exposure, his report is not credible due to internal inconsistency and inconsistency with other evidence in the record. Specifically, his service personnel records that show no foreign service, including on the island of Guam. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). While the Veteran believes his diabetes mellitus is related to herbicide agents exposure in service, the Board reiterates that the preponderance of the evidence weighs against findings that such exposure occurred. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for diabetes mellitus, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for hypertension. The Veteran contends that service connection is warranted for hypertension. 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. Review of the Veteran’s service treatment records (STRs) shows no complaints or manifestations of hypertension. On examination for separation from active duty, the Veteran’s blood pressure reading was 108/62. VA treatment records show a diagnosis of this disorder dates from February 2009 when a cerebrovascular accident (CVA) was diagnosed. This is over thirty years after the Veteran’s separation from active duty. The Board concludes that, while the Veteran has a diagnosis of hypertension, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1363; 38 C.F.R. § 3.303(a), (d). Two private practitioner medical opinions, dated in January 2012 and October 2018, have rendered opinions that the Veteran’s hypertension and residuals of a CVA are at least as likely as not related to an in-service injury, event, or disease; however, the opinions are not probative because the opinions were based solely on the premise that the Veteran was exposed to defoliants including Agent Orange during service. As the Board has previously indicated, there is no evidence in the record that supports such a finding. As such, the preponderance of the evidence is against a finding that the exposure occurred. Reonal, 5 Vet. App. at 458. While the Veteran is competent to report that he did sustain such exposure, his report is not credible due to internal inconsistency and inconsistency with other evidence in the record. Specifically, his service personnel records that show no foreign service, including on the island of Guam. Buchanan, 451 F.3d at 1331. Moreover, hypertension is not one of those disease that may be presumed as being the result of Agent Orange exposure. 38 C.F.R. § 3.309. While the Veteran believes his hypertension is related to herbicide agents exposure in service, the Board reiterates that the preponderance of the evidence weighs against findings that such exposure occurred. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for hypertension, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for ASHD. The Veteran contends that service connection is warranted for ASHD. 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. Review of the Veteran’s service treatment records (STRs) shows no complaints or manifestations of ASHD. As noted, his blood pressure reading on examination for separation from service was within normal limits. VA treatment records show a diagnosis of a myocardial infarction dates from March 2009, thirty years after the Veteran’s separation from active duty. The Board concludes that, while the Veteran has a diagnosis of ASHD, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1363; 38 C.F.R. § 3.303(a), (d). Two private practitioner medical opinions, dated in January 2012 and October 2018, have rendered opinions that the Veteran’s ASHD is at least as likely as not related to an in-service injury, event, or disease; however, the opinion is not probative because the opinions were based solely on the premise that the Veteran was exposed to defoliants including Agent Orange during service. As the Board has previously indicated, there is no supporting such a finding. As such, the preponderance of the evidence is against a finding that the exposure occurred. Reonal, 5 Vet. App. at 458. While the Veteran is competent to report that he did sustain such exposure, his report is not credible due to internal inconsistency and inconsistency with other evidence in the record. Specifically, his service personnel records that show no foreign service, including on the island of Guam. Buchanan, 451 F.3d at 1331. While the Veteran believes his ASHD is related to herbicide agents exposure in service, the Board reiterates that the preponderance of the evidence weighs against findings that such exposure occurred. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for ASHD, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Service connection for ED. The Veteran contends that service connection is warranted for ED. Specifically, it is asserted that this disorder is related to diabetes mellitus. As noted above, service connection has been denied for diabetes mellitus. As such, there is no basis for a determination of secondary service connection. 38 C.F.R. § 3.310(a). Regarding direct service connection, 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. Review of the Veteran’s service treatment records (STRs) shows no complaints or manifestations of ED or a disability related to this disorder. Thus, the Board concludes that, while the Veteran has a diagnosis of ED, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease or to a service-connected disability. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1363; 38 C.F.R. § 3.303(a), (d). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for ED, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Service connection for OSA. The Veteran and his attorney contend that service connection is warranted for OSA, which was first demonstrated in the record in April 2010. Specifically, it is asserted that the OSA is a result of weight gain secondary to metabolic disturbances such as the Veteran’s diabetes mellitus and ASHD. This is the opinion set forth by the Veteran’s private physician in an October 2018 statement. As noted above, service connection has been denied for diabetes mellitus and ASHD. As such, there is no basis for a determination of secondary service connection. 38 C.F.R. § 3.310(a). Regarding direct service connection, 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. Review of the Veteran’s STRs shows no complaints or manifestations of OSA or a disability related to this disorder. Thus, the Board concludes that, while the Veteran has a diagnosis of OSA, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease or to a service-connected disability. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1363; 38 C.F.R. § 3.303(a), (d). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for OSA, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Service connection for MDD. The Veteran and his attorney contend that service connection is warranted for MDD, which is believed to be related to service. It is asserted that the Veteran’s depression is related to medical disabilities, including residuals of a cerebrovascular accident as a result of hypertension and a myocardial infarction as a result of ASHD. As noted above, service connection has been denied for these disorders. Review of the Veteran’s service treatment records (STRs), shows that in April 1973, he self-referred for a psychiatric evaluation due to “situational adjustment problems.” He was again evaluated in February 1975 for complaints that included depression. On examination for separation from service, he reported having or having had depression and excessive worry. Post-service medical evidence includes VA treatment records that show no complaint or manifestation of anxiety or depression until February 2009. Significantly, records prior to this date include screenings for depression that were negative. An examination was conducted by VA in August 2016. At that time, the diagnosis was MDD. After examination of the Veteran and review of the record, the examiner opined that it was less likely than not that the Veteran’s MDD was incurred in or caused by service. The examiner noted the Veteran’s in-service complaints of “situational stress with depression” after having received two administrative reprimands. It was noted that the Veteran was given “supportive therapy” and was soon administratively discharged. The Veteran was not afforded psychiatric treatment until 34 years after his military service, with no continuation of symptoms. The treatment in 2009 was for depression and anxiety secondary to non-service-connected medical conditions, including a stroke in 2008 and a myocardial infarction in 2009. While the Veteran believes his MDD is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specific medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the August 2016 VA medical opinion, which is based upon a full reading of all medical records. Significantly, this is the only medical opinion on point in the record. The Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for MDD, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for Parkinson's disease is remanded. Regarding the Veteran’s claim of service connection for Parkinson’s disease, it was contended that this disability is related to herbicide agents exposure in service. As discussed above, however, that has not been shown. Nevertheless, the Veteran also submitted an October 2018 private medical opinion, which links his Parkinson’s disease exposure to chemicals, including trichloroethylene (TCE). Review of the Veteran’s STRs shows that they include a specific notation to the Veteran’s exposure to TCE. Under these circumstances, the Board finds that an examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: (Continued on the next page)   Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any Parkinson’s disease. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to TCE in service. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph P. Gervasio