Citation Nr: 18155268 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 18-33 871 DATE: December 4, 2018 ORDER Entitlement to service connection for lung cancer is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for ulcers is denied. FINDINGS OF FACT 1. The appellant was not exposed to an herbicide agent during active service. 2. The most probative evidence establishes that lung cancer was not incurred in or is otherwise causally related to the appellant’s active service, nor did it manifest to a compensable degree within one year thereof. 3. The most probative evidence establishes that the appellant does not have a right ankle disability which was incurred in or is otherwise causally related to his active service, or manifested to a compensable degree within one year thereof. 4. The most probative evidence establishes that the appellant does not have an ulcer disability which was incurred in or is otherwise causally related to his active service, or manifested to a compensable degree within one year thereof. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lung cancer have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2018). 3. The criteria for entitlement to service connection for ulcers have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Army from July 1947 to July 1950. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant filed a timely Notice of Disagreement (NOD), received in May 2018. A Statement of the Case (SOC) was issued in May 2018. A timely substantive appeal was received in June 2018. A Supplemental Statement of the Case (SSOC) was issued in July 2018. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a Veteran must show: ‘(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’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, ulcers, and lung cancer, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The appellant’s service treatment records are unavailable due to the 1973 fire at the National Personnel Records Center (NPRC). The Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government 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 appellant’s claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an “adverse presumption” where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant’s allegation of injury or disease in service in these particular cases). Lung Cancer Upon reviewing the evidence of record, the Board finds that service connection is not warranted for lung cancer. The appellant contends that he developed lung cancer as a result of exposure to herbicide agents including Agent Orange during his service in Korea. See e.g. June 2017 VA Form 21-526EZ. As an initial matter, the Board finds that the appellant was not exposed to an herbicide agent, including Agent Orange, while on active duty. Service connection is presumed for certain diseases, including lung cancer, if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.307(a)(6)(iv) states that a veteran who, during active military, naval, or air service, 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 Demilitarized Zone (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. However, the appellant served on active duty well before April 1, 1968. Indeed, his separation from service occurred in July 1950, nearly 18 years prior. Thus, he is not entitled to the presumption of exposure to herbicide agents. The Board takes judicial notice of the fact that the Korean DMZ was not established until 1953, approximately three years after the appellant’s separation from active service. The appellant does not contend, nor is there any indication, that he served in the Republic of Vietnam or Thailand, or that he had regular and repeated contact with C-123 aircraft. See 38 C.F.R. § 3.307(a)(6)(iii)-(v). While the appellant is not entitled to the presumption of exposure to herbicide agents, the Board has also considered whether the evidence is in equipoise as to whether the appellant was exposed to herbicide agents, including Agent Orange, while on active duty. The Board finds that the appellant’s conclusory statements regarding his contended exposure are not competent to establish that he was exposed to herbicide agents, including Agent Orange. Indeed, he has offered no more than bare assertions that such exposure took place while he was in Korea. A December 2017 Formal Finding by the RO indicates that there is no basis to establish that the appellant was exposed to herbicide agents. The appellant was contacted for additional information to corroborate his claimed exposure to herbicide agents, but did not respond. See e.g. July 2017 letter. Although VA has a duty to assist the appellant in the development of his claim, such duty is not “a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Rather, the appellant also has an obligation to assist in the adjudication of his claim. “If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood, 1 Vet. App. at 195. Although lung cancer is a disease associated with exposure to herbicide agents, as discussed above, the appellant was not exposed to such. Thus, presumptive service connection for exposure to an herbicide agent is not for application. 38 C.F.R. § 3.309(e). There is no evidence, nor is it contended, that lung cancer manifest to a compensable degree within one year of separation. Thus, service connection on a presumptive basis is not warranted. May 2017 records from the George Washington University Hospital indicate that the appellant has a history of lung cancer. He was diagnosed with hemoptysis. An August 2017 clinical note states that the appellant reported a history of lung cancer, status post resection surgery seven years prior. He indicated that he takes a medication of mucus and uses a nebulizer. He is a former smoker, having quit in 2006. Examination revealed scattered rhonchi and a left chest wall thoracotomy scar. The appellant reported that he has been told that his cancer is in remission. An April 2018 clinical note states that the appellant had recently been hospitalized for pneumonia. He reported that his breathing does not bother him, although he reported productive cough with yellowish sputum. He denied shortness of breath. A chest X-ray indicated a persistent chronic infiltrate in the left lower lobe, unchanged from 2016. There is no indication that the appellant’s lung cancer is related to a disease or injury incurred during his active service. There is no competent medical opinion indicative of a nexus. Indeed, while service treatment records are unavailable, the appellant has pointed to no other in-service event, injury, or disease in addition to his contended exposure to Agent Orange. Although the appellant contends that his lung cancer was caused by his active service, there is no indication, aside from the appellant’s mere conclusory generalized lay statements, that this is so. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). He is competent to report symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Right Ankle Upon reviewing the evidence of record, the Board finds that service connection is not warranted for a right ankle disability. The appellant contends that he experienced a right ankle fracture while on active duty. While his service treatment records are unavailable, as discussed supra, even if such an in-service injury were conceded, service connection is not warranted in the instant case. There is no competent evidence that the appellant has a current right ankle disability during the period on appeal. There is no evidence, nor is it contended, that arthritis manifest to a compensable degree within one year of separation. In any event, as there is no current disability, service connection on a presumptive basis is not warranted. An August 2017 clinical note states that the appellant reported residual right ankle pain since fracturing his right ankle while serving in Korea. However, examination of the right ankle revealed no concerning abnormalities. In April 2018, a VA clinician noted that there was no limitation of movement of the right ankle. The Board has considered the appellant’s lay history of symptomatology related to his claimed disorder throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in this case, he is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. 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 diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1131. Thus, where the collective lay and medical evidence indicates that, fundamentally, the appellant does not have a current disability for which service connection is sought, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). The Board notes that “disability” as defined in 38 U.S.C. §§ 1110 and 1131 refers to the functional impairment of earning capacity, not the underlying cause of said disability, and that pain alone can reach the level of a functional impairment of earning capacity. Saunders v. Wilkie, No. 2017-1466, Fed. Cir. (April 3, 2018). In this case, however, there is no indication, nor is it contended, that the appellant experiences any right ankle residuals which cause a functional impairment in earning capacity. While the appellant has competently and credibly reported right ankle pain, there is no diagnosed disability; and there is no indication that his competently-reported pain reaches the level of a functional impairment of earning capacity. Rather, range of motion was full in April 2018. Based on the evidence of record at this time, the Board must conclude that there is no current right ankle disability; and his claim of service connection for such must be denied at this time. See 38 C.F.R. §§ 3.102, 3.303; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.”); Brammer, supra. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Ulcers Upon reviewing the evidence of record, the Board finds that service connection is not warranted for ulcers. While his service treatment records are unavailable, as discussed supra, even if an in-service injury or disease were conceded, service connection is not warranted in the instant case. There is no competent evidence that the appellant has a current disability of ulcers during the period on appeal. There is no evidence, nor is it contended, that ulcers manifest to a compensable degree within one year of separation. In any event, as there is no current disability, service connection on a presumptive basis is not warranted. The record indicates that the appellant was hospitalized for duodenal ulcers in 1955 and 1957. Records from MedStar Washington Hospital Center indicate that the appellant was diagnosed with gastrointestinal bleeding in June 2018. Included with such medical records is a Patient and Medication Education section which notes that there are many different problems that can cause gastrointestinal bleeding, including ulcers. Other potential causes were noted to be esophagitis, hemorrhoids, anal fissures, diverticulosis, diverticulitis, polyps, cancer, and gastritis. However, there is no competent evidence of a diagnosis of ulcers during the period on appeal. The Board has considered the appellant’s lay history of symptomatology related to his claimed disorder throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in this case, he is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. 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 diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1131. Thus, where the collective lay and medical evidence indicates that, fundamentally, the appellant does not have a current disability for which service connection is sought, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). Based on the evidence of record at this time, the Board must conclude that there is no current ulcer disability; and his claim of service connection for such must be denied at this time. See 38 C.F.R. §§ 3.102, 3.303; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.”); Brammer, supra. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel