Citation Nr: 18160318 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 15-00 393A DATE: December 27, 2018 ORDER Entitlement to service connection for a heart condition, to include ischemic heart disease, including as due to exposure to herbicides, is denied. Entitlement to service connection for hypertension, including as secondary to a heart condition or due to exposure to herbicides, is denied. FINDINGS OF FACT 1. The Veteran did not serve in country or on the inland waterways of the Republic of the Vietnam during the Vietnam era but served in the blue waters off the coast of Vietnam. 2. The Veteran was not exposed to herbicides in service. 3. No disease or chronic symptoms of cardiovascular disease to include hypertension, were manifested during service or were continuously manifested in the years after service, and cardiovascular disease or hypertension was not manifested to a degree of ten percent within one year of service separation. 4. The Veteran’s current heart condition was diagnosed many years after service and there is no competent evidence that establishes that the heart disease is related to disease or injury in service. 5. The Veteran’s hypertension was diagnosed many years after service and there is no competent evidence that establishes that hypertension is related to disease or injury in service or is due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart condition, to include ischemic heart disease, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1969 to November 1970. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction of the case has since been transferred to the RO in Los Angeles, California. In March 2018, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. Service Connection In order to establish service connection, the facts, as shown by evidence, must demonstrate that a disease or injury resulting in current disability was incurred during service or, if pre-existing active service, was aggravated therein. 38 U.S.C. § 1110. Service connection may also be granted for a disability initially diagnosed after service when all of the evidence shows it to have been incurred in service. 38 C.F.R. § 3.303(d). Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Establishing secondary service connection requires evidence sufficient to show: (1) That a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). In this case, cardiovascular diseases, including hypertension, are listed among the “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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 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 disease 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). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as cardiovascular disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Presumptive service connection on the basis of herbicide exposure is provided for specified diseases manifested to a degree of 10 percent within a specified period in 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. 38 U.S.C. § 1116(a). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected 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: chloracne or other acneform disease consistent with chloracne, non-Hodgkin’s lymphoma, soft tissue sarcoma, Hodgkin’s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson’s disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne and porphyria cutanea tarda and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). VA’s Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended to certain specific disorders, based upon extensive scientific research. See, e.g., Notices, 68 Fed. Reg. 27,630-41 (2003); 64 Fed. Reg. 59,232-243 (1999); 61 Fed. Reg. 57,586-589 (1996). However, the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff’d sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). 1. Entitlement to service connection for a heart condition, to include ischemic heart disease, including as due to exposure to herbicides. 2. Entitlement to service connection for hypertension, including as secondary to a heart condition or due to exposure to herbicides. The Veteran asserts that he was exposed to Agent Orange while serving aboard USS De Haven during the Vietnam War. Service personnel records show that that he served aboard USS DE HAVEN (DD-727) in the contiguous waters of Vietnam from October 25 to November 17, 1969 and from January 18 to February 27, 1970. In September 2013, the National Personnel Records Center (NPRC) indicated that there are no records of exposure to herbicides. In December 2014, the Veteran reported that he was in the waters of Vietnam where he could see the land from the ship about three miles or less from the shore. The ship stayed in the water for 30 days and in and out of the water the next time. However, he stated that none of the crew members, including himself, left the ship and set boots on the ground from ship. Instead, he claims that his exposure to Agent Orange was by way of airborne drifts. During his March 2018 Board hearing, the Veteran testified that he served on a small destroyer that stayed in blue water and never touched brown water while he was attached to the ship. However, he avers that the ship came out of brown water in 1967 and probably had not been cleaned or disinfected. The Board rejects the Veteran’s argument that he should be considered in the brown waters due the proximity to the land for purposes of whether the Veteran had service in Vietnam. According to Haas, service in the official waters off the coast of Vietnam does not constitute “service in the Republic of Vietnam.” See VAOPGCPREC 27-97 (O.G.C. Prec.27-97); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (holding that the Court had erred in rejecting VA’s interpretation of § 3.307(a)(6)(iii) as requiring a service member’s presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation’s presumption). See 38 C.F.R. §§ 3.307(a), 3.313(a) (2018). Instead, service in the Republic of Vietnam requires visitation (i.e. setting foot) in Vietnam or service in the inland waters of Vietnam. Id. Here, the Veteran’s presence on the land mass of Vietnam may not be assumed because the Veteran specifically denied any such presence. Further, VA maintains a list of U.S. Navy and Coast Guard ships associated with military service in Vietnam and possible exposure to Agent Orange based on military records. Veterans whose military records confirm they were aboard these ships qualify for presumption of herbicide exposure. See http://www.publichealth.va.gov/exposures/agentorange/shiplist/list.asp. USS DE HAVEN is listed under ships operating temporarily on Vietnam’s inland waterways. This category includes large ocean-going ships that operated primarily on Vietnam’s offshore waters for gunfire support of ground operations and interdiction of enemy vessels travelling along coastal waters. It also includes ships supplying and supporting these operations. Examples of such vessels include destroyers, cruisers, and cargo ships. The deep offshore waters are often referred to as “blue waters” and naval vessels operating on them are referred to as the Blue Water Navy. Ships in this category entered Vietnam’s inland waterways temporarily as part of their gunfire, interdiction, or support missions. All Veterans who served aboard these vessels at the time of entry into Vietnam’s inland waterways are eligible for the presumption of Agent Orange exposure. The list indicates that USS DE HAVEN (DD-727) operated on Me Kong River on September 1, 1963 and on Saigon River during early March 1967. However, the service records show that the Veteran did not serve aboard this ship on these dates. As noted above, he served aboard USS De Haven from October 25 to November 17, 1969 and from January 18 to February 27, 1970. The Board finds that the weight of the evidence establishes that USS DE HAVEN (DD-727) was an offshore “blue water” vessel during the time period the Veteran was aboard the ship and the Veteran did not serve in the Republic of Vietnam within the land borders, including the inland waters, of Vietnam. As it is not shown that the Veteran had service in the Republic of Vietnam, the presumption of exposure to herbicides does not apply to the Veteran’s claim of service connection for ischemic heart disease. 38 U.S.C. § 1116(f). Further, as he is not presumed to have been exposed to herbicides, the presumption of service connection under 38 U.S.C. § 1116(a)(1) for these disorders does not apply. Although neither the presumption of exposure to herbicides nor the presumption of service connection due to such exposure applies to the claim for the reasons articulated, the Veteran may still establish service connection by evidence of actual exposure to herbicides and by evidence that such exposure caused the disability. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran also asserts that he was exposed to herbicides through the water touched on USS DE HAVEN or by way of airborne drifts. In determining the regulatory definition of service in the Republic of Vietnam, VA carefully considered all the potential exposure mechanisms advanced by the Veteran. See Definition of Service in the Republic of Vietnam, 73 Fed. Reg. 20566 (April 16, 2008). Specifically, VA noted that: It is conceivable that some veterans of offshore service incurred exposure under some circumstances due, for example, to airborne drift, groundwater runoff, and the proximity of individual boats to the Vietnam coast. For purposes of the presumption of exposure, however, there is no apparent basis for concluding that any such risk was similar in kind or degree to the risk attending service within the land borders of the Republic of Vietnam. More significantly, because ‘‘offshore service’’ encompasses a wide range of service remote from land and thus from areas of actual herbicide use, there is no reason to believe that any risk of herbicide exposure would be similarly pervasive among veterans of offshore service as among veterans of service within the land borders of Vietnam. Id. at 20569. The Secretary has determined that the evidence available at this time does not support establishing a presumption of exposure to herbicides for Blue Water Navy Vietnam Veterans. The Secretary’s decision is based on careful review of a May 2011 Institute of Medicine (IOM) of the National Academy of Sciences report entitled “Blue Water Navy Vietnam Veterans and Agent Orange Exposure.” This report was completed at the request of VA. The IOM reviewed a wide range of data sources and concluded that there is insufficient evidence to determine whether Blue Water Navy Veterans were exposed to Agent Orange-associated herbicides during the Vietnam War. The Board finds that the Veteran’s assertions that he was exposed to herbicides by way of airborne drifts or through contact with the ship while stationed aboard USS DE HAVEN to have no probative value. While the Veteran is competent to describe an observable event such as having a substance touch his skin or using water or seeing a liquid substance, the Board finds that the Veteran has not shown that he has the requisite expertise to identify a chemical substance. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that a layperson’s assertions indicating exposure to gases or chemicals during service are not considered to be sufficient evidence alone to establish actual exposure). Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical or scientific expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). There is no evidence of record that the Veteran has the expertise to identify the substances he may have been exposed to without scientific training or the use of scientific testing to identify a substance he came into contact with. Thus, his statements that he was exposed to Agent Orange are not competent and have no probative value. Accordingly, the Board defers to the Secretary’s reasonable interpretation regarding the reliability and soundness of the various scientific studies purporting to establish actual herbicide exposure to blue water Vietnam Veterans. Consequently, the Veteran’s claim of service connection for ischemic heart disease does not fall within the purview of 38 U.S.C. § 1116; 38 C.F.R. § 3.307 and the weight of the evidence establishes that the Veteran was not exposed to herbicides during active service. The Board finds that the weight of the competent and credible evidence establishes that the Veteran’s heart condition and hypertension first manifested in about 2006, over 35 years after service. With respect to negative evidence, the fact that there were no records of any complaints, treatment, or diagnosis of a heart condition or hypertension for over 30 years after service separation weighs against the claims. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of cardiovascular symptoms or findings for over three decades between the period of active service and manifestation of this disease is itself evidence which tends to show that this disease did not have its onset in service or for years thereafter. There is no evidence of heart condition or hypertension in service or for many years thereafter. Separation examination in October 1970 indicates that examination of the heart and vascular system was normal. There is no evidence of cardiovascular symptoms, complaints, or diagnoses in active service. There is no competent evidence of a diagnosis of a cardiovascular disease or hypertension within one year after service separation in November 1970. The Board also finds that the Veteran did not experience continuous symptoms of a cardiovascular disease or hypertension in service or since service separation. There is no competent evidence of symptoms of this disorder since separation from service until the time of the diagnoses in about 2006. Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) and § 3.307(a) is not warranted. Moreover, there is no competent evidence to establish a nexus between the current heart condition/hypertension and any documented event or incident of service. There is no competent and credible medical evidence that links the claimed disease to service. Also, as service connection for a heart condition is not service-connected, hypertension secondary to such is not warranted. See supra 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). During his March 2018 Board hearing, the Veteran testified that he has experienced irregular heartbeats intermittently since service. He believed his current heart condition is related to the Agent Orange exposure or stress in service and that his hypertension is secondary to his heart condition. The Veteran’s own assertions that the claimed heart condition with secondary hypertension is related to service to include herbicide exposure or stress in service are afforded no probative weight in the absence of evidence that the Veteran has the expertise to render opinions about medical matters. Although lay persons are competent to provide opinions on some medical issues, the specific disability in this case, a specific kind of heart disease or hypertension, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Diagnosing a heart disease or hypertension requires specialized training and medical diagnostic testing for a determination as to diagnosis and causation, and is not susceptible of lay opinions on etiology. There is no evidence that the Veteran has medical expertise. Furthermore, the Veteran has not submitted any credible evidence to corroborate the assertion that he was actually exposed to herbicides in service, and if so, the circumstance of that exposure. Therefore, the Board finds that the Veteran’s lay statements of record cannot be accepted as competent evidence sufficient to establish service connection for a heart condition or hypertension. They are not sufficient to establish exposure to herbicides in service and they are not competent to diagnose a heart disease or hypertension and relate them to any event, injury, or disease during service. In light of the above, the Board finds that the preponderance of the evidence is against a finding that the heart condition or hypertension is related to service. As the preponderance of the evidence is against the Veteran’s claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claims for service connection for a heart condition and for hypertension on a direct and presumptive basis is denied. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. J. In, Counsel