Citation Nr: 18150425 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 17-02 121 DATE: November 15, 2018 ORDER Entitlement to service connection for coronary artery disease (CAD), as due to herbicide exposure, is denied. Entitlement to service connection for diabetes mellitus, type 2 (DMII), as due to herbicide exposure, is denied. Entitlement to service connection for erectile dysfunction (ED) is denied. FINDINGS OF FACT 1. The Veteran’s CAD is not shown to be causally or etiologically related to any disease, or injury in service, or due to herbicide exposure. 2. The Veteran’s DMII is not shown to be causally or etiologically related to any disease, or injury in service, or due to herbicide exposure. 3. The Veteran does not have a current diagnosis of ED. CONCLUSIONS OF LAW 1. The criteria for service connection for CAD have not been met. 38 U.S.C. §§1101, 1110, 1111, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). 2. The criteria for service connection for DMII have not been met. 38 U.S.C. §§1101, 1110, 1111, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). 3. The criteria for service connection for ED have not been met. 38 U.S.C. §§1101, 1110, 1111, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain disabilities may be presumed for those exposed to herbicide agents. With exceptions not pertinent here, Veterans exposed to Agent Orange or other listed herbicide agents are presumed service-connected for certain conditions if manifest to a degree of 10 or more, including CAD and DMII, even if there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to 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 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). For purposes of applying the presumption of exposure to herbicide agent under 38 C.F.R. § 3.307(a)(6)(iii), the service member must have actually been present on the landmass or the inland waters of Vietnam during the Vietnam era. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert. denied, 555 U.S. 1149 (2009). Despite the foregoing, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). Entitlement to service connection for CAD and DMII, as due to herbicide exposure The Veteran contends that his CAD and DMII are due to his herbicide exposure during his service in Vietnam. Service treatment records (STRs) are silent for any treatment, diagnosis, or complaints of CAD or DMII. Private medical treatment records indicate the Veteran was first diagnosed with DMII in March 2004 and with CAD in November 2006. Numerous private medical treatment records from Merch Hospital of Buffalo and Buffalo Cardiology and Pulmonary Associates indicate ongoing treatment for CAD and DMII, but no discussion on their etiology. VA Treatment records indicate treatment for CAD and DMII, but no discussion on their etiology. Documentation from the “USS Estes AGC-12 Association Home Page” submitted by the Veteran indicates a belief that the ships history is incorrect “perhaps because some of the information was and still is classified.” In a June 2014 Formal Finding, the JSRRC determined that there was not enough evidence to corroborate herbicide exposure. The Board finds the JSRRC determination is of high probative value as to whether the Veteran was exposed to herbicide agents in service. The Veteran is not competent to report that he was actually exposed to any herbicide agents in service as he is not shown to have any specialized experience in toxicology or otherwise has specialized knowledge related to tactical herbicides. In his July 2016 Decision Review Officer Hearing, the Veteran testified that he had service in Vietnam aboard the USS Estes and USS Chicago. Service connection for CAD and DMII is not warranted on a presumptive or direct basis. The evidence of record is silent for any competent or credible evidence that the Veteran was exposed to herbicides in service. He contends that he was exposed to herbicides while serving on the USS Estes and USS Chicago. A review of his personnel records and the “Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents” list maintained by VA, show that the Veteran did not serve on either ship during the period in which VA has determined those aboard were likely exposed to herbicides. Further, the most probative evidence of record is silent for any indication that the Veteran was exposed to herbicides during his active duty. In addition, the first indication that the Veteran had a diagnosis of DMII was in March 2004 and CAD in November 2006—almost four decades after his active duty service. The Board finds no probative evidence that links the Veteran’s CAD or DMII with service, and although the Veteran believes his heart problems and diabetes are related to his active service, he is not competent to establish this nexus, because he is not shown to possess any medical expertise. The Veteran’s representative contends that he should be afforded a VA examination, but the low bar of McClendon has not been met here. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The record reflects a current disability, but there is no probative evidence of CAD or DMII in service, and no indication that the Veteran’s DMII or CAD are directly related to his active service or manifested within his first post-service year. The only evidence of a possible connection between the Veteran’s CAD and DMII and his service, are the Veteran’s own broad and conclusory statements. However, these statements contradict the most probative evidence of record—his STRs, military personnel records, and JSRRC findings. As such, the Veteran’s statements are not sufficient to trigger VA’s obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed.Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). The Board finds no credible evidence of in-service manifestation of CAD or DMII, persistent and/or recurrent symptoms of disability since service, or competent evidence suggesting that CAD and DMII are due to active service. With no probative evidence of CAD and DMII in service or for years thereafter, and no evidence linking the Veteran’s current CAD and DMII diagnoses with service, the greater weight of the evidence is against this claim. Entitlement to service connection for ED The Veteran contends that his ED is due to his active service. STRs are silent for any complaints, treatment, or diagnosis of ED. VA and Private treatment records are silent for any clinical diagnosis or treatment of ED. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran is competent to report a contemporaneous medical diagnosis; the Veteran in this case has provided little information pertaining to a current ED diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To the extent that he may be contending that he experiences ED secondary to DMII or CAD, service connection for both have been denied above, and secondary service connection is not warranted. The preponderance of the evidence is against a finding of a current ED diagnosis. As such the evidence is against the claim. Reasonable doubt does not arise and the claim must be denied. 38 U.S.C. § 5107(b) (2012). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel