Citation Nr: 1806555 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-13 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for prostate cancer, to include as secondary to herbicide exposure. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a heart disability, to include as secondary to herbicide exposure. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for hypertension, to include as secondary to herbicide exposure. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for a skin condition, to include as secondary to herbicide exposure. 5. Entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure. 6. Entitlement to service connection for a heart disability, to include as secondary to herbicide exposure. 7. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure. 8. Entitlement to service connection for a skin condition, to include as secondary to herbicide exposure. 9. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran had service from February 1967 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A hearing was held in April 2017 by means of video conferencing equipment with the Veteran in Atlanta, Georgia, before the undersigned Veterans Law Judge, sitting in Washington, DC and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. At the hearing, the Veteran submitted additional evidence and testified that he wanted to waive initial RO consideration of the evidence. See Transcript, page 9. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. The RO denied service connection for prostate cancer, and reopening the claims for service connection for a heart disability, hypertension, and a skin disability in May 2009; the Veteran did not appeal or submit new and material evidence within one year and that decision became final. 2. Since May 2009, the Veteran has submitted new and material evidence sufficient to reopen his claims for service connection for prostate cancer, a heart disability, hypertension, and a skin disability for consideration on the merits. 3. The Veteran has not presented credible evidence that he was exposed to herbicides during service. 4. Treatment records do not show a current heart disability other than hypertension. 5. The evidence does not show a relationship between prostate cancer, hypertension, and/or a skin condition and his period of service. 6. The Veteran's hypertension did not manifest to a degree of 10 percent or more within one year of his separation from service. 7. The Veteran indicated that he is unable to work due to hypertension and prostate cancer. CONCLUSIONS OF LAW 1. The May 2009 rating decision that denied service connection for the Veteran's claim for service connection for prostate cancer, and that declined to reopen the Veteran's claims for service connection for a heart disability, hypertension, and a skin disability is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 2. New and material evidence has been received to reopen the claims of entitlement to service connection for prostate cancer, a heart disability, hypertension, and a skin disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for prostate cancer, to include as secondary to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for a heart disability, to include as secondary to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for service connection for hypertension, to include as secondary to herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 6. The criteria for service connection for a skin condition, to include as secondary to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 7. The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012) 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). In March 2003, the RO denied service connection for a heart disability, skin disability, and hypertension, claimed as due to herbicide exposure in service. The Veteran did not appeal or submit new and material evidence within one year of the decision; therefore it became final. In May 2009, the RO declined to reopen the claims for a heart disability, skin disability, and hypertension, claimed as due to herbicide exposure in service, based on the lack of new and material evidence. The RO also denied service connection for prostate cancer. The Veteran did not appeal or submit new and material evidence within one year of the decision; therefore it became final. Since the May 2009 rating decision, the Veteran has submitted new evidence indicating that he stepped foot on the landmass of Vietnam and thus was exposed to herbicides. For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed; therefore, the Board finds that on its face, the evidence is sufficient to reopen the Veteran's claims for service connection for prostate cancer, a heart disability, a skin disability, and hypertension, to include as secondary to exposure to herbicides, for adjudication on the merits. To this extent, the appeal is granted. III. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) medical, or other competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical or other competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, such as hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military service, the following diseases, among others, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, prostate cancer, and 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). 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Note 2 provides that ischemic heart disease does not include hypertension. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides to include Agent Orange 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 Notice, 72 Fed. Reg. 32,395 (2007). Notwithstanding the aforementioned provisions relating to presumptive service connection, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). As to herbicide exposure, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. 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. 38 U.S.C. § 101(29)(A); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.313(a); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009) (holding that a Veteran must have actually set foot within the land borders of Vietnam or been present in the inland waters of Vietnam to be entitled to presumptive service connection). Notably, the Veterans Benefits Administration (VBA) has historically extended the herbicide presumption to naval ships which entered Vietnam's inland waterways or those which docked to the shore, but did not extend the presumption to naval ships operating in open water ("brown" versus "blue" water ships). See, e.g., Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated December 9, 2014), VA Adjudication Procedure Manual M21-1 (M21-1), pt. IV, subpt. ii, § 1.H.2.b. Significantly, in April 2015, the Court, in addressing a claim for presumptive service connection based on herbicide exposure while a ship was anchored in Da Nang Harbor, held that the rationale underlying VA's designation of Da Nang Harbor as an offshore rather than an inland waterway was inconsistent with the identified purpose of the statute and regulation: providing compensation to veterans based on the likelihood of exposure to herbicides. Gray v. McDonald, 27 Vet. App. 313, 326 (2015). As a result of this decision, the VBA revised its list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated September 5, 2017) http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm. The guidance provides that when ships, including destroyers, are operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore, and when any veteran aboard the ship at the time of documented shore activity provides a lay statement of personally going ashore, the Veteran will be eligible for the presumption of exposure. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In this case, the Veteran seeks service connection for disabilities based on exposure to herbicides under the new guidance. In a February 2017 statement, he indicated that he had "boots on the ground" in Vietnam. Specifically, he stated that on Monday April 15, 1968, while on the USS John A. Bole, he drove his captain to shore for a meeting with other commanding officers in the Qui Nhon Harbor. He stated that once there, he and another crewmember tied to the pier and got off the boat. He indicated that he was a boat coxswain. The evidence shows that the Veteran was stationed aboard the USS John A. Bole, a destroyer class ship, and deck logs indicate that the ship was stationed in the offshore waters of Vietnam during the Veteran's period of service. The deck logs indicate that the ship anchored in Qui Nhon harbor and that there was a special sea and anchor detail. However, the Board finds that the Veteran's statement regarding his visitation to Qui Nhon and stepping foot on land is not credible. According to his DD-Form 214, the Veteran's Military Occupational Specialty (MOS) was CS 3000/1000, equivalent to the civilian occupation of 313 or chef/cook. The personnel records do not indicate that the Veteran was a boatswain or coxswain. Even assuming that he served as a boat coxswain, the Board still finds that his statement regarding visitation to the landmass of Vietnam is not credible. The Board points out that the Veteran started filing claims for service connection for disabilities based on herbicide exposure in September 2002. In December 2002, the RO sent the Veteran the Veterans Claims Assistance Act of 2000 (VCAA) notification letter explaining that he must indicate how he was exposed to herbicides. In a January 2003 response, the Veteran indicated that he was on the USS John A. Bole. He did not indicate that he visited the landmass of Vietnam. In December 2007, the Veteran filed to reopen claims for service connection for heart disease, hypertension, and a skin condition and he filed a new claim for prostate cancer, claiming each disability as secondary to herbicide exposure. In a January 2008 VCAA letter, the RO informed the Veteran again that he must submit evidence that he went ashore and stepped on land in the Republic of Vietnam. The RO specifically asked the Veteran to provide information about whether he served in the Republic of Vietnam, to include in the offshore waters if service involved visitation to the landmass. In another paragraph, the RO reiterated the need for evidence of the Veteran's in-country service and stated that in-country "means that between January 9, 1962 and May 7, 1975 you physically served in or visited the Republic of Vietnam. If you were stationed aboard a ship, you must have disembarked in Vietnam." (emphasis added). Thus, the RO provided ample explanation to the Veteran indicating that he must have disembarked and visited the landmass of Vietnam. In February 2008, the Veteran returned the VCAA notice acknowledgement, indicating that he received the notification letter and was aware of the information needed to substantiate his claim. He provided no additional evidence regarding his exposure to herbicides. In a March 2009 VCAA letter, the RO again asked the Veteran to explain how his duties in the offshore waters of Vietnam exposed him to herbicides. The RO asked the Veteran to identify the ship; to state whether the ship was docked, beached, anchored, or up a river; to indicate whether he went ashore while the ship was offshore and if so, to indicate the mode of transportation; to include the date of herbicide exposure; and to describe his exposure and indicate the location, length of stay, and purpose of going ashore. The RO indicated that he could submit lay statements and witness statements. The Veteran did not respond and his claims were denied. In July 2011, the Veteran filed to reopen his claims. In November 2011, the RO sent a VCAA letter and once again asked the Veteran to indicate whether he visited the shores of Vietnam. In December 2011, the Veteran returned the VCAA acknowledgement letter. A January 2013 VA treatment record indicates that the Veteran asked his provider to complete a disability benefit questionnaire (DBQ) for ischemic heart disease based on his service on a ship stationed offshore from Vietnam. It does not appear that the Veteran told his provider that he went ashore. Additionally, in his September 2013 notice of disagreement, he stated that he was a blue water Veteran and that his ship was close enough to land and should be on the ship list. He did not indicate that he went ashore. In his February 2014 VA Form 9, the Veteran referred to himself as a blue water veteran but he did not indicate that he went ashore. In April 2014, in support of a claim for service connection for posttraumatic stress disorder, the Veteran described his service on the USS John A. Bole; however, he did not report that he left the ship or went ashore for any purpose. Based on the foregoing, the Board finds that the evidence shows that over the years, the Veteran was provided with ample notice that he needed to explain how he was exposed to herbicides. The RO specifically asked him on multiple occasions to indicate whether he left his ship and went ashore. He was informed that he could submit lay statements pertaining to this fact. Given the Veteran's return of the VCAA acknowledgement letters, the Board finds that he was aware that he needed to provide this information. However, he did not indicate that he visited Vietnam until after the guidance was promulgated in response to Gray - almost 15 years after he filed his first claim for service connection and after receipt of multiple notice letters asking for this information. Unfortunately, meeting the VBA guidance factors (stationed on a destroyer operating in close coastal waters, evidence that crew went ashore, and a lay statement of personally going ashore) does not automatically qualify the Veteran for the presumption of exposure to herbicides as the Board must first weigh the credibility of his lay statement. In this case, the Board finds it difficult to believe that the Veteran failed to remember a visit to Qui Nhon and stepping foot on the landmass of Vietnam for 15 years. When weighing credibility, the Board may consider interest or bias, which is shown in this case. The Board finds the Veteran's February 2017 statement is inconsistent with his past silence, especially when considering that the RO provided notice and requested this information on several occasions since 2002. The Veteran clearly had adequate notice that he needed to indicate that he went ashore but he provided no such evidence until 2017 after the guidance was issued in response to Gray. Consequently, the Board finds his statement regarding visitation to Qui Nhon harbor and stepping on the landmass of Vietnam, not credible, and as such, the presumption of herbicide exposure does not apply. As such, service connection for prostate cancer, a heart disability, hypertension, and a skin condition based on exposure to herbicides must be denied. While the Veteran is not entitled to consideration of service connection based on the presumptions for exposure to herbicides, the question remains as to whether he is entitled to service connection for prostate cancer, a heart disability, hypertension, and a skin condition on a direct basis. First, the Board points out that the medical records do not show a diagnosis of a heart condition other than hypertension during the pendency of the claim. The Veteran as a layperson is not competent to offer a diagnosis. Thus, without a current disability, the claim must be denied. Concerning the other three disabilities, treatment records show diagnoses of prostate cancer, hypertension, and tinea. However, the evidence does not show a nexus between any of the disabilities and service. Regarding prostate cancer, the Board notes that the Veteran was not treated for any prostate conditions during service and the clinical evaluation of the genitourinary system at separation from service in January 1970 was normal. His condition did not manifest until 2005. None of the medical providers have indicated that the prostate cancer is directly due to service, other than to herbicide exposure. The Board acknowledges the April 2017 letter from Dr. H.C.S., indicating that the prostate cancer is related to Agent Orange exposure; however, as discussed above, the credible evidence does not support a finding that the Veteran was exposed to herbicides during service. Regarding hypertension, the Board finds that while the Veteran testified that it started during service, the service treatment records do not show treatment or a diagnosis. The Board acknowledges that in November 1968, the Veteran had an elevated blood pressure reading at 142/100. However, additional readings taken the same day were within normal range at 122/76 and 120/80. The provider indicated that the Veteran did not have a history of hypertension and a diagnosis of hypertension was not indicated. The January 1970 separation examination report does not indicate a diagnosis of hypertension. Further, treatment records dated subsequent to service also fail to show that hypertension manifested to a compensable degree within one year of separation from service. Notably, during his hearing before the Board, the Veteran testified that he had been taking blood pressure medication since separation from service; however, during the February 2003 VA examination, the Veteran reported that he had elevated blood pressure in 1982, almost 12 years after separation from service, but did not require medications until approximately 1993. Given the inconsistent statements, the Board finds that the Veteran's reports indicating the date his hypertension manifested are not credible. As for a skin condition, the service treatment records do not show treatment for a skin condition during service and the clinical evaluation of the skin was normal at separation from service. The Board observes that in February 2003, a VA examiner diagnosed chloracne, not active, and faint scars on the face and cheeks secondary to chloracne. However, the diagnosis was based on the Veteran's report of exposure to Agent Orange during service. As noted above, the credible evidence does not show that the Veteran was exposed to herbicides during service. At most, treatment records show a diagnosis of tinea in April 2013. However, there is no indication of a relationship between tinea and service. Again, the skin was found clinically normal at separation in January 1970. To the extent that the Veteran believes that his disabilities are related to service, he has not shown that he has specialized training sufficient to render such an opinion. His opinion in this regard is not competent medical evidence. 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). Here, the most probative evidence demonstrates that the Veteran's disabilities are not related to service. Consequently, since the evidence does not indicate a nexus between the claimed disabilities of prostate cancer, heart, hypertension, or skin and his period of service, the Board finds that the preponderance of the evidence is against the Veteran's claims. The benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. IV. TDIU The Veteran filed a claim for a TDIU in June 2012. On his claim form, he indicated that he was unable to work due to his health, including his prostate condition and blood pressure. During his hearing before the Board, the Veteran testified that he quit working due to his prostate cancer. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). The Veteran is service-connected for bilateral hearing loss, tinnitus, and a back condition, with a combined rating of 20 percent. However, he did not indicate that he is unable to work due solely to these conditions. Since the Veteran claims that he is unable to work due to his hypertension and prostate cancer, and since he is not service-connected for these disabilities, consideration of a TDIU is not warranted. The appeal is denied. ORDER New and material evidence having been received, the claims for service connection for prostate cancer, a heart condition, hypertension, and a skin condition are reopened; to this extent, the appeal is granted. Service connection for prostate cancer is denied. Service connection for a heart disability is denied. Service connection for hypertension is denied. Service connection for a skin condition is denied. Entitlement to a TDIU is denied. ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs