Citation Nr: 1807223 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 13-33 787A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for erectile dysfunction. 3. Entitlement to service connection for urinary incontinence. 4. Entitlement to service connection for diabetes mellitus, type II. 5. Entitlement to service connection for a heart disability, to include atrial fibrillation or other cardiac arrhythmia. 6. Entitlement to service connection for hypertension. 7. Entitlement to service connection for insomnia. 8. Entitlement to service connection for psychosis for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702. REPRESENTATION Appellant represented by: Travis Sayre, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from June 1972 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In July 2017, the Veteran had a hearing with the undersigned Veterans Law Judge (VLJ) at the Philadelphia RO. A transcript of the hearing has been associated with the electronic claims file. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. Prostate cancer was not manifest in service, within one year of separation from service, and is not otherwise related to the Veteran's active service. 2. Erectile dysfunction was not manifest in service, an organic disease of the nervous system did not manifest within one year of separation from service, erectile dysfunction is not otherwise related to the Veteran's active service, and erectile dysfunction was not caused or aggravated by a service-connected disability. 3. Urinary incontinence was not manifest in service, is not otherwise related to the Veteran's active service, and was not caused or aggravated by a service-connected disability. 4. Diabetes mellitus, type II, was not manifest in service, within one year of separation from service, and is not otherwise related to the Veteran's active service. 5. A heart disability was not manifest in service, within one year of separation from service, and is not otherwise related to the Veteran's active service. 6. Hypertension was not manifest in service, within one year of separation from service, and is not otherwise related to the Veteran's active service. 7. Insomnia was not manifest in service, is not otherwise related to the Veteran's active service, and was not caused or aggravated by a service-connected disability. 8. An active diagnosis of psychosis is not shown to have developed within two years of separation from active duty service and the Veteran does not currently have such a diagnosis. CONCLUSIONS OF LAW 1. Prostate cancer was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. Erectile dysfunction was not incurred in or aggravated by service or caused or aggravated by a service connected disease or injury. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). 3. Urinary incontinence was not incurred in or aggravated by service or caused or aggravated by a service connected disease or injury. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). 4. Diabetes mellitus, type II, was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 5. A heart disability was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 6. Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 7. Insomnia was not incurred in or aggravated by service or caused or aggravated by a service connected disease or injury. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). 8. The criteria for service connection for psychosis for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702 have not been met. 38 U.S.C. §§ 1702, 5107 (2012); 38 C.F.R. § 3.384 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the arguments of the Veteran's former representative that VA failed in its duty to assist by providing an adequate examination when there was a plausible basis. The representative did not explain what that "plausible basis" was or specifically discuss why an examination was necessary. The Board notes that this argument was advanced using the same language for each issue in both the notice of disagreement and substantive appeal without a specific delineation as to why examinations were necessary. As will be discussed in greater detail below, there is no lay or medical evidence that any of the claimed disabilities began in service or within one year of separation from service. The sole contention is that the disabilities are the result of exposure to Agent Orange during service in Thailand. As will be discussed, exposure to Agent Orange cannot be conceded. As such, there is no basis for obtaining a VA examination for any of the claims on appeal. As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claims. Here, the undersigned clarified the issues on appeal and made inquiry as to the existence of outstanding evidence. The VLJ also held open the record for 90 days to permit the Veteran to obtain additional evidence in support of his claims. The actions of the VLJ comply with 38 C.F.R. § 3.103 (2017). Neither the Veteran nor his representative has otherwise identified any potential shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Certain diseases, to include diabetes mellitus, cardiovascular-renal disease (including hypertension), malignant tumors, and organic diseases of the nervous system, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Alternatively, 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 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 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). Such diseases include, among others, Type 2 diabetes and ischemic heart disease. 38 C.F.R. § 3.309(e). The Board notes that "service in Vietnam" includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to the country of Vietnam itself. 38 C.F.R. § 3.313 (2017). However, the VA General Counsel has determined that the regulatory definition, which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served there, requires that an individual actually have been present within the land boundaries of the Republic of Vietnam. See VAOPGCPREC 27-97. 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 C.F.R. § 3.307(a)(6)(iii). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that § 3.307(a)(6)(iii) was reasonably interpreted by VA as requiring that a service member had actually set foot within the land borders of Vietnam in order to be entitled to statutory presumptions of herbicide exposure and service connection. Haas v. Peake, 525 F.3d 1168 (2008), cert denied, 129 S. Ct. 1002, 173 L. Ed 2d 315 (2009). In addition, VA has also established a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR). VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam-era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis is extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of U.S. servicemen in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). Personnel records indicate that the Veteran served overseas at the 7th Radio Research Field Station in Udorn, Thailand. The Veteran's service treatment records include no complaints of, treatment for, or diagnoses of prostate cancer, erectile dysfunction, incontinence, hypertension, diabetes mellitus, or heart problems. A Report of Medical Examination in June 1975 prior to separation included normal examinations of the relevant systems, urinalysis was negative for albumin or sugars, and blood pressure was within normal limits at 138/88. The Veteran concedes that he did not have symptoms related to any of the claimed disabilities during service or for many years after service. In October 2010, the Veteran reported that he had been diagnosed with prostate cancer and had his prostate removed in October 2007, with subsequent erectile dysfunction. He also reported developing diabetes mellitus, hypertension, and atrial fibrillation after service. In addition, the Veteran reported that he had suffered with insomnia for over 30 years. His November 2010 claim alleged that he had prostate cancer, diabetes mellitus (type II), hypertension, and coronary fibrillation due to exposure to herbicides while serving in Udorn, Thailand. The Veteran also alleged that the hypertension was secondary to the diabetes mellitus and that he had erectile dysfunction and urinary incontinence as a result of the removal of his prostate. Private treatment records document a history of prostate cancer, as well as hypertension, diabetes mellitus (type II), a questionable heart murmur, erectile dysfunction, cardiac arrhythmias, chest pain, and other related problems. Private treatment records document assessments of "Other insomnia." None of these records link the diagnosed problems to the Veteran's active service, to include any claimed herbicide exposure. An October 2010 private treatment record indicated that the Veteran's tinnitus was louder at night. A September 2011 VA audiological examination indicated, "The veteran reports his tinnitus as constant and sometimes can be very loud and bothersome. He notes that it does not cause him difficulty going to sleep at night. He treats for insomnia not related to the tinnitus." An October 2011 VA memorandum made a formal findings of the unavailability of evidence to verify herbicide exposure. During the Veteran's July 2017 Board hearing, he discussed how he had been stationed in Northern Thailand at Rammason Radio Research Field Station from May 1974 to June 1975, which was located 8 miles north of Udorn Air Base in Udorn, Thailand. The Veteran did not observe Agent Orange being sprayed, but personnel would intermittently cordon off areas that were being sprayed. He believed that they cleared the jungle for the facility using Agent Orange. The Veteran noted that he had visited Udorn to see the B-52s and fighters kept there. He was picked up and driven to the base and other than visiting the aircraft did not walk the base perimeter. The Veteran was diagnosed with prostate cancer in 2007 and underwent a radical prostatectomy that year. Residual symptoms included erectile dysfunction and urinary incontinence. The Veteran had been diagnosed with diabetes about 20 years previously around the age of 41 or 42. He denied being obese at the time of diagnosis, before, or after. As to the heart problems, the Veteran described pounding in the chest and skipping beats. The Veteran had been diagnosed with hypertension 30 to 40 years previously. The Veteran believed that all of these disabilities were connected to possible exposure to Agent Orange during his service in Thailand. As to his insomnia, the Veteran reported that he was unable to sleep due to his service-connected tinnitus, as well as anxiety. As noted, the Veteran contends that he has diabetes mellitus, type II; hypertension; prostate cancer residuals (including erectile dysfunction and urinary incontinence); a heart disability; and hypertension as a result of in-service exposure to herbicides. Specifically, the Veteran alleges that he was exposed to herbicides while stationed in Udorn, Thailand at the 7th Radio Field Station. During his Board hearing, the Veteran also discussed visiting Udorn Air Base to look at the aircraft, but denied that during the visit he was in close proximity to the base perimeter and that he was driven to the base. In that regard, the Board notes that the RO concluded in an October 2014 memorandum that there was insufficient evidence to verify herbicide exposure. The memorandum noted service at the 7th Radio Research Field Station in Udorn, Thailand, but multiple records requests for information indicating herbicide exposure did not demonstrate such exposure. Moreover, the RO concluded that a finding of herbicide exposure could not be made on a facts found basis based on the Veteran's circumstances of service. The Board agrees with the findings of the RO as to granting the claims on a presumptive basis. The Veteran worked as a Morse code interceptor and in that position there is no evidence that his duties would have been in close proximity to the field station perimeter (even assuming that herbicides were used at that location). Moreover, the Veteran noted that at certain points areas of the station were cordoned off to prevent access, potentially when herbicides were being used, which would further prevent exposure. In any case, the Veteran conceded that he did not observe herbicides being used and his argument essentially is that herbicides must have been used to clear the area for the station and to prevent the jungle from encroaching on the station perimeter. Even were the Board to presume that such contentions were accurate (and there is no evidence of such), the Veteran's position was not commensurate with perimeter duties such that he would have been exposed to any herbicides used. Similarly, the Veteran denied any direct contact with the base perimeter when he visited Udorn Air Base. Given the foregoing, exposure to herbicide is not presumed and service connection is not warranted on this presumptive basis for any of the claimed disabilities. The Board notes, notwithstanding the foregoing presumptive provisions, that the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310. As outlined above, the Veteran has multiple diagnosed disorders associated with his claims. As such, the crucial inquiry is whether any of these diagnosed problems were incurred in or are otherwise related to the Veteran's active service. The Board concludes that the preponderance of the evidence indicates they were not. The Veteran's service treatment records do not include complaints, treatment, or diagnosis of diabetes mellitus, hypertension, prostate cancer, a heart disability, erectile dysfunction, urinary incontinence, or insomnia. Indeed, the Veteran's June 1975 Report of Medical Examination prior to separation from service included entirely normal findings other than a tattoo. Contemporaneous urinalysis testing was negative for albumin or sugar and the Veteran's blood pressure was within normal limits. Thus, there is no evidence of the onset of any of the claimed disabilities in service. Here, diabetes, hypertension, a heart disability and prostate cancer were not noted during service. In addition, he did not have characteristic manifestations sufficient to identify such disease entity. 38 C.F.R. § 3.303. Nor is there evidence of a continuity of symptomatology of symptoms from service. The Veteran does not contest and the medical evidence does not indicate ongoing problems from service and the Veteran did not seek treatment based on symptoms related to any of the above claimed disorders until many years after separation from service. Indeed, the Veteran has acknowledged that his symptoms did not begin until years after service. Thus, the Veteran had no in-service evidence of diabetes mellitus, hypertension, prostate cancer, a heart disability, erectile dysfunction, urinary incontinence, or insomnia and the evidence of record does not include lay or medical evidence of a continuity of symptomatology since service. In addition, as discussed above, there is no credible evidence of exposure to herbicides in service. Furthermore, the Veteran has not contended and the claims file does not contain any evidence that a competent medical professional has otherwise linked his current disabilities to his active service. The Board acknowledges the Veteran's assertions that his diabetes mellitus, hypertension, prostate cancer, and heart problems are the result of his active service. The Veteran is competent to report sensory or observed symptoms, but given the complexity of attributing such symptoms to his active service and/or exposure to herbicides such contentions are beyond the competency of a layperson, particularly given the extended time period between service and symptom onset. As such, the Board affords the Veteran's contentions no probative weight. As to the erectile dysfunction and urinary incontinence, the lay and medical evidence clearly indicates that such problems were caused by his diabetes mellitus, type II. As discussed herein, service connection is not established for diabetes mellitus. As such, service connection may not be established for erectile dysfunction and urinary incontinence as secondary to service-connected diabetes mellitus, type II, as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). As to the Veteran's contention raised during his July 2017 Board hearing that his insomnia was caused or aggravated by his service-connected tinnitus, the Board notes that there is no medical evidence to support such an assertion. The Board recognizes that an October 2010 private treatment record documented that the Veteran's tinnitus was louder at night; however, a September 2011 VA audiological examination report specifically noted that the Veteran, "treats for insomnia not related to the tinnitus." Such a finding was based on the Veteran's explicit statement that his tinnitus, "does not cause him difficulty going to sleep at night." The Veteran did not report during his July 2017 Board hearing that his tinnitus had worsened since 2011 to account for his changed position that the tinnitus now affected his ability to sleep and, as such, the Board affords significantly greater probative weight to statements made during medical examination, as opposed to those made in pursuit of VA compensation benefits. See Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, and desire for monetary gain); see also Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). In summary, the Veteran's service treatment records show no symptoms or issues related to any of the claimed disabilities. There is no evidence of problems related to any of the claimed disabilities for many years after separation from service. No medical professional has ever attributed the Veteran's diagnosed disabilities to his active service, nor is the Veteran competent to make such a link. Based on the foregoing, service connection on a direct basis is not warranted. Moreover, exposure to herbicides is not presumed and service connection on a presumptive basis is not warranted for any of the claimed disabilities. As service connection for diabetes mellitus, type II, is not warranted, service connection for erectile dysfunction and urinary incontinence on a secondary basis is barred as a matter of law. No medical professional has linked the Veteran's insomnia to his service-connected tinnitus (and indeed there is medical evidence to the contrary) and the Veteran's statements in that regard are of significantly less probative weight than his statements to the contrary made during his 2011 VA examination. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See 38 U.S.C. § 5107(b) (2012); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Eligibility for Treatment for Psychosis under 38 U.S.C. § 1702 Under 38 U.S.C. § 1702(a), any Veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before July 26, 1949, in the case of a Veteran of World War II, before February 1, 1957, in the case of a Veteran of the Korean conflict, before May 8, 1977, in the case of a Vietnam era Veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a Veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service. 38 U.S.C. § 1702 (2012). The Board notes that 38 U.S.C. § 1702 has been expanded to include diagnoses of active mental illness; however, this provision explicitly applies only to veterans of the Persian Gulf War. See 38 U.S.C. § 1702(b). The Veteran did not have service during the Persian Gulf War era. See 38 C.F.R. § 3.2(i) (the wartime period for the Persian Gulf War era is defined as beginning on August 2, 1990, and ending on a date to be prescribed by Presidential proclamation or law). As such, the Board will limit consideration solely to whether the Veteran had an active psychosis within 2 years of his separation from service. The Board finds that the current medical records do not include a diagnosis or other medical evidence of psychosis. VA has defined the term psychosis for purposes of presumptive service connection at 38 C.F.R. § 3.384. In this regard, under 38 C.F.R. § 3.384, the term "psychosis" is defined so as to include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. As noted, the Veteran has not been diagnosed with a psychosis as defined by VA regulations. Moreover, during his Board hearing the Veteran denied ever having been diagnosed with psychosis and both he and his current representative were unsure why his prior representative had raised the issue. The Veteran does not have a current psychosis and there is no evidence that the Veteran developed psychosis either during active service or within two years of separating from active service. Accordingly, the preponderance of the evidence is against eligibility for treatment for psychosis under 38 U.S.C. § 1702. ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for urinary incontinence is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for a heart disability, to include atrial fibrillation or other cardiac arrhythmia, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for insomnia is denied. Entitlement to service connection for psychosis for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702 is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs