Citation Nr: 18150024 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-06 812 DATE: November 14, 2018 ORDER Entitlement to service connection for a back disorder is denied. Entitlement to service connection for a respiratory disorder, claimed as asbestosis, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a kidney disorder is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for a left lower extremity disorder is denied. Entitlement to service connection for a right lower extremity disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran did not set foot on the landmass of Vietnam, dock in Vietnam, or travel the in-land waterways and, as such, is not presumed to have been exposed to Agent Orange during service. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a respiratory disorder. 3. The preponderance of the evidence is against finding that the Veteran has diabetes mellitus that is due to a disease or injury in service, to include a specific in-service event, injury, or disease. 4. The preponderance of the evidence is against finding that the Veteran has a back disorder due to a disease or injury in service, to include a specific in-service event, injury, or disease. 5. The preponderance of the evidence is against finding that the Veteran has hypertension due to a disease or injury in service, to include a specific in-service event, injury, or disease. 6. The preponderance of the evidence is against finding that the Veteran has a kidney disorder due to a disease or injury in service, to include a specific in-service event, injury, or disease. 7. The preponderance of the evidence is against finding that the Veteran has a left lower extremity disorder, diagnosed as neuropathy of the left lower extremity, due to a disease or injury in service, to include a specific in-service event, injury, or disease. 8. The preponderance of the evidence is against finding that the Veteran has a right lower extremity disorder, diagnosed as neuropathy of the right lower extremity, due to a disease or injury in service, to include a specific in-service event, injury, or disease. 9. The Veteran is not service connected for any disabilities and, as such, the evidence does not establish that the Veteran is precluded from obtaining and sustaining gainful employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310. 4. The criteria for service connection for a kidney disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 5. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 6. The criteria for service connection for a left lower extremity disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 7. The criteria for service connection for a right lower extremity disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 8. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341(a), 4.3, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to November 1968. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 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). The law also provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). Section 3.307(d)(6) provides that the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307 (d)(6)(i). Section 3.307(d)(6) also provides that 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, 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 (d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. However, this presumption 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); VAOPGCPREC 27-97 (Mere service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam do not constitute “[s]ervice 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) (upholding VA’s statutory interpretation excluding the “blue water” Navy from presumptive herbicide exposure). In February 2016, in response to a decision by the United States Court of Appeals for Veterans Claims (Court) in Gray v. McDonald, 27 Vet. App. 313 (2015), VA released updated guidance about which bodies of water in Vietnam constitute inland waterways and thus which Naval service members are appropriately in receipt of the presumption of exposure to herbicides as a result of service in Vietnam. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). However, for purposes of presumptive service connection due to herbicide exposure, the term “ischemic heart disease” does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309 (e), Note 2 (codified at 38 C.F.R. pt. 4); 75 Fed. Reg. 53, 202-53, 205 (August 31, 2010). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not been specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to herbicide exposure, but must also determine whether the disability was otherwise the result of active service. 38C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Here, the Board finds that the evidence does not show the Veteran was exposed to Agent Orange during his military service. In this respect, the Veteran has argued that his vessel, the USS Chicago, was stationed in the in-land waters during the Vietnam War. In support of his assertion, the Veteran submitted a list of ships that are known to have gone in the in-land waters and the USS Chicago is indeed listed as having docked in Da Nang harbor in 1969. However, the Veteran separated from service in November 1968, which is prior to the docking of the vessel. Additionally, a November 2013 VA memorandum determined that the information was insufficient to verify the Veteran’s exposure to Agent Orange during his military service due to a negative response received from the Joint Services Records Research Center (JSRRC). The JSRRC determined the Veteran’s vessel did not dock or travel the in-land waters ways in the Republic of Vietnam during the Veteran’s service. Finally, the Veteran’s personnel records do not provide evidence that he was exposed to Agent Orange during service. Therefore, exposure to Agent Orange is not conceded. Further, while early onset peripheral neuropathy is a condition presumptively linked to Agent Orange exposure, the Veteran has not asserted that is left and right lower extremity disorders, diagnosed as neuropathy, are early onset. As such, entitlement to service connection on a presumptive basis is not warranted pursuant to 38 C.F.R. § 3.307. Additionally, for veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 38 C.F.R. 3.307(a), 3.309(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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. 3.309 (a)). In the present case, however, the record does not establish that the Veteran was diagnosed with either a back disorder or hypertension, the only disorders for which this presumption would apply, within one year of service. In fact, the Veteran was not diagnosed with hypertension until June 2004, and a back disorder for which he underwent spinal fusion surgery in July 2016. As these disorders were not diagnosed until approximately 36 and 48 years, respectively, following the Veteran’s separation from service, entitlement to presumptive service connection is not warranted. However, as here, the failure to meet the criteria for presumptive service connection does not preclude a Veteran from establishing entitlement to service connection on a different basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the Veteran’s remaining theories of entitlement for service connection for all of the disorders noted below are based on either direct (discussed above) or secondary service connection. With regard to secondary service connection, a disability can be service-connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310 (a). Moreover, secondary service connection may also be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Finally, the Board notes that the Veteran has not been afforded VA examinations addressing his claims, but the Board finds that examinations are not required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary’s obligation under 38 U.S.C. § 5103A (d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is 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. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With respect to the Veteran’s claim of entitlement to service connection for a respiratory disorder, the evidence does not indicate that the Veteran has been diagnosed with such a disability at any time. Instead, the only suggestion that the Veteran may have a respiratory disorder are the Veteran’s own statements. The Veteran’s medical records otherwise consistently fail to demonstrate the presence of a respiratory disorder. These facts are insufficient to trigger VA’s duty to provide an examination with an opinion. Without competent evidence indicating that the Veteran has indeed been diagnosed with a respiratory disorder, a VA examination addressing this claim is unwarranted. See Waters, 601 F.3d 1274. Regarding the claims of service connection for diabetes mellitus, hypertension, a back disorder, a kidney disorder, and right and left lower extremity disorders, the evidence does not indicate the claimed disorders are due to or aggravated by the Veteran’s military service. Again, the only suggestion that these disorders are due to his military service are the Veteran’s own statements. The Veteran has not offered any medical records to suggest otherwise. These facts are insufficient to trigger VA’s duty to provide examinations. See Waters, 601 F.3d 1274. Finally, an examination addressing the Veteran’s claim for a TDIU is unwarranted because the Veteran is not in receipt of service connection for any disabilities. 1. Respiratory disorder The question for the Board is whether the Veteran has a current respiratory disorder that began during service or are at least as likely as not related to an in-service injury, event, or disease. For the reasons discussed below, the Board concludes that the Veteran does not have a current diagnosis of a respiratory disorder, to include asbestosis, and has not had diagnoses at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s available service treatment records are completely silent regarding any complaints, treatment, or diagnoses of a respiratory disorder during service. Since his separation from service in 1968, the only records that indicate he has complained of any respiratory symptomatology are the Department of Corrections records in 2007, outside the scope of this appeal, and note only complaints of coughing and chest pain. No specific diagnosis was rendered. Further, the VA treatment records dating through 2018 fail to show that the Veteran ever received treatment, complained of, or was diagnosed with a respiratory disorder during the pendency of this appeal. In fact, a July 2018 VA treatment record specifically notes that the Veteran’s lungs were clear. While the Veteran believes he currently suffers from a respiratory disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex and require specialized medical education, as well as the ability to interpret complicated diagnostic medical testing, in order to render a diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In sum, the Veteran’s claim fails to meet the first prong of service connection, which is the requirement of a current disability. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b). As such, the claim must be denied. 2. Diabetes mellitus, left lower extremity disorder, right lower extremity disorder, back disorder, hypertension, and kidney disorder As discussed above, the only remaining theories of entitlement pursuant to which the Veteran may establish service connection for the claimed disorders are either direct or secondary. In this respect, the Veteran is alleging all disorders are due directly to his military service. Alternatively, the Veteran has stated that if service connection for diabetes mellitus is established, then his kidney disorder, hypertension and right and left lower extremity disorders are due to or aggravated by the diabetes. The question for the Board is whether the Veteran’s claimed disorders began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of diabetes mellitus, left and right lower extremity neuropathy, hypertension, kidney disease, and status post lumbar fusion (see July 2016 VA treatment record and July 2018 VA problem list), the preponderance of the evidence weighs against finding that any of the claimed disorders began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this respect, the Veteran’s service treatment records are completely silent regarding any complaints, treatment, or diagnoses for diabetes, a kidney disorder, hypertension, back problems, or right and left lower extremity disorders. Further, despite the existence of the Veteran’s Department of Correction and VA treatment records associated with the claims file, these records do not contain any etiological opinions attributing the claimed disorders to the Veteran’s military service. Thus, there is simply no evidence of record, aside from the Veteran’s unsubstantiated lay statements, that diabetes, a kidney disorder, hypertension, a back disorder, or left and right lower extremity disorders are due to his military service. While the Veteran believes his disorders are related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case, as the issues of causation in this case requires knowledge and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Finally, to the extent the Veteran is seeking service connection on a secondary basis, as there are no currently service-connected disorders, this theory is not for application and further discussion is not warranted. Accordingly, service connection for diabetes mellitus, a kidney disorder, hypertension, a back disorder, and right and left lower extremity disorders is not warranted because the Veteran has not satisfied the nexus requirement of attributing these disorders to his active service. See 38 C.F.R. § 3.303. In reaching the above conclusions, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine does not apply. 38 U.S.C. § 5107 (b). The claims of entitlement to service connection for are denied. TDIU A total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). When the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating is for consideration when the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In determining whether the Veteran is entitled to a TDIU, neither his non-service connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Fanning v. Brown, 4 Vet. App. 225 (1993); Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his level of education, prior work experience, and training. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Here, the Veteran has no service connected disabilities. Accordingly, entitlement to TDIU must be denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel