Citation Nr: 1808182 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-10 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a heart disorder, to include as due to Agent Orange and asbestos exposure. 2. Entitlement to service connection for diabetes mellitus, to include as due to Agent Orange and asbestos exposure. 3. Entitlement to service connection for Hodgkin's disease, to include as due to Agent Orange and asbestos exposure. REPRESENTATION Appellant represented by: Patricia M. Ferguson, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy (USN) from October 1968 to July 1970. This appeal to the Board of Veterans' Appeals (Board) arises from an April 2011 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina. By that rating action, the RO confirmed and continued its January 2011 denials of the claims for service connection for a heart disorder, diabetes mellitus and Hodgkin's disease, each to include as due to Agent Orange exposure. The Veteran appealed these adverse determinations to the Board. In September 2012, the Veteran testified before the undersigned at a Board video conference hearing conducted via the above RO. A copy of the hearing transcript has been associated with the record. The Veteran's attorney waived initial RO consideration of VA treatment records submitted during the hearing. Thus, a remand to have the RO initially consider this evidence in the first instance is not required. 38 C.F.R. § 20.1304 (2017). In January 2015, the Board remanded the claims for additional development. Pursuant to the Board's remand, the agency of original jurisdiction (AOJ) scheduled the Veteran for appropriate VA examinations, searched for outstanding VA treatment records, provided the appropriate notice to the Veteran, and issued a supplemental statement of the case. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). (The issue of entitlement to service connection for renal cell carcinoma due to asbestos exposure is addressed in a separate decision.) FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran was exposed to Agent Orange while serving on board the USS Chicago (CG11). 2. The competent medical evidence does not demonstrate a current diagnosis of a heart disorder, to include as due to Agent Orange and asbestos exposure. 3. The evidence is in equipoise; diabetes mellitus, type 2, is presumed to have been incurred during the Veteran's active service. 4. The evidence is in equipoise; Hodgkin's disease is presumed to have been incurred during the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disorder, to include as due to exposure to Agent Orange and asbestos, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Affording the Veteran all reasonable doubt, the criteria for service connection for diabetes mellitus, type 2, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. Affording the Veteran all reasonable doubt, the criteria for service connection for Hodgkin's disease, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice most recently in April 2015. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Law and Regulations Service Connection - In General Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). In addition, certain chronic diseases (e.g., degenerative joint disease (DJD) or arthritis and diabetes mellitus) may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition, as defined in 38 C.F.R. § 3.309(a) (2017), in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2017). This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2017). The United States Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). III. Factual Background On a September 1968 Report of Medical History for enlistment, the Veteran denied pain or pressure in chest; palpitation or pounding heart; sugar or albumin in urine; or tumor, growth, cyst or cancer, or recent weight loss. On a September 1968 Report of Medical Examination for enlistment, the heart, endocrine system and skin, lymphatics were normal. On a June 1970 Report of Medical Examination for separation, the heart, endocrine system, and skin, lymphatics, and were normal. On a November 2006 Primary Care Provider Note, the Veteran complained of sharp, stabbing, chest pain. On a December 2006 Primary Care Provider Note, the Veteran complained of an episode of chest pain. The examiner assessed chest pain. On a December 2006 Primary Care Annual Evaluation Note, Exercise Stress test was normal. On a March 2008 Treatment Note, the Veteran was diagnosed with Diabetes Mellitus II. On a March 2010 Vascular Laboratory Carotid Duplex Examination Note, the examiner reported right and left peak systolic velocity analysis shows no evidence of hemodynamically significant carotid artery occlusive disease. On a June 2010 Treatment Note, the Veteran was diagnosed with Hodgkin's disease. On a June 2010 Pulmonary Consultation, the Veteran denied any chest pain or palpitations. On a June 2010 Cardiology Procedure Consultation, the ECHO concluded normal left ventricle systolic function without regional wall motion abnormalities, structurally normal valves without significant regurgitation/stenosis, impaired left ventricle relaxation likely normal for age, and normal right and left side filling pressure. On a July 2010 Agent Orange Registry History and Physical Examination, the Veteran reported chest pain, Diabetes Mellitus II, and Hodgkin's Disease. In a July 2010 Agent Orange Registry letter, the Veteran was diagnosed with exposure/toxic effect of Agent Orange, with claimable affects: Diabetes Mellitus and Hodgkin's Disease. On an October 2011 Cardiology Consultation, the examiner reported that the Veteran is without cardiac history or symptoms and that the Veteran has a normal ECHO one year ago. The examiner indicated that the Veteran did have risk factors but that he did not have any manifestations of symptoms indicating increased cardiac risk for his age. At a September 2012 Board Videoconference Hearing, the Veteran testified that he served in Vietnam along the inland waterways and that he is entitled to presumptive service connection as a result of Agent Orange exposure. The Veteran noted that it was highly probable that he was exposed to asbestos as a result of his military occupational specialty which was a fireman and machinist mate. The Veteran conceded that he was not one of the eight unnamed passengers from the USS Chicago who went in a utility boat, departed for the Deepwater Piers at Da Nang and returned to the USS Chicago. The Veteran stated that a nurse told him that he had congestive heart failure. On an October 2013 Hematology and Oncology Attending Note, the Veteran's heart was normal. On a November 2015 CT exam, the CT did not indicated pleural plaques or other markers of asbestos exposure. At a February 2016 VA Heart Conditions Examination, the Veteran reported episodes of chest pain in 2006 treated with nitrates. The examiner noted that a December 2006 stress test was normal without evidence of myocardial ischemia. The examiner indicated that the Veteran underwent echocardiograms to monitor the toxic effects of the antineoplastic drugs used to treat his Hodgkin's lymphoma as heart failure is a side effect but there is no medical evidence that he developed heart failure. The examiner noted that the Veteran was seen by cardiologists for follow-up but the Veteran was not diagnosed with any cardiopathy, ischemic or otherwise. The examiner opined that the Veteran's heart disorder has not been diagnosed therefore is less likely than not (less than 50% probability) incurred in or caused by the claimed in-service asbestos exposure. The examiner noted that there was no evidence of a cardiac condition at this time. The examiner indicated that the Veteran reported that he was told by a nurse that he had heart failure; however, cardiac exams and echocardiograms performed during his chemotherapy as standard of care and again five years after completion of chemotherapy never showed any evidence of cardiac failure. The examiner reported that the Veteran contends that he was exposed to asbestos material during service. The examiner noted that the Veteran's records do show that his line of duty during service exposed him to asbestos material. The examiner indicated that there was no medical evidence of exposure and a recent chest CT in November 2015 did not demonstrate the classic pleural plaques or other markers of asbestos exposure. The examiner noted that there was no currently diagnosed cardiac condition. At a February 2016 VA Diabetes Mellitus II examination, the Veteran reported that he was exposed to asbestos while working as a machinist and removing tiles in service. The examiner indicated that the Veteran was diagnosed with Diabetes Mellitus II in July 2006, thirty-six years after service and that the Veteran had multiple risk factors for development of Diabetes Mellitus II, including a family history and chronic obesity. The examiner noted that the medical literature did not show any evidence of a causal relationship between or even association between DM II and asbestos exposure. The examiner opined that the Veteran's Diabetes Mellitus II was less likely than not (less than 50 percent probability) incurred in, caused, or aggravated by the claimed in-service exposure to asbestos fiber in his line of duty. At a February 2016 VA Hematologic and Lymphatic Conditions examination, the Veteran reported that he was found to have a large cervical lymphadenopathy and Hodgkin's disease diagnosed at the time of a random physical. The examiner noted that the Veteran was diagnosed with Hodgkin's disease in 2010. The examiner indicated that an extensive review of the evidence based medical literature does not support a causal relationship between Hodgkin Lymphoma and asbestos exposure. The examiner noted that multiple risk factors will trigger the development of Hodgkin Lymphoma including obesity and tobacco smoking. The examiner opined that the Veteran's Hodgkin Lymphoma was less likely than not (less than 50 percent probability) incurred in, caused, or aggravated by the claimed in-service asbestos exposure. In an April 2016 Statement in Support of Claim, the Veteran's attorney reported that the Veteran was stationed on the USS Chicago (CG11) anchored in Da Nang Harbor in 1969. The Veteran's attorney indicated that the Veteran was assigned to offload and reload Navy crew who had gone ashore to Da Nang and as a result the Veteran was physically exposed to the onshore crew and their clothing when he reloaded the crew. The Veteran's attorney noted that the vessel was docked in close proximity to shore. IV. Heart Disorder The Veteran asserts that he has a heart disorder as a result of exposure to Agent Orange and asbestos while on active service. As discussed above, one required element for the establishing of service connection is presence of a current disability. In this appeal, the evidence weighs against a finding that the Veteran has a current heart disability, and therefore, service connection is not warranted. See 38 C.F.R. § 3.303. A review of the service treatment records is silent for any complaints or treatment for a heart disorder. Prior to discharge from service, the Veteran's heart was found to be normal on the June 1970 separation examination. After discharge from service, post service treatment records show complaints and treatment for chest pain without any underlying cardiovascular pathology. An exercise stress test, performed by VA in December 2006, was negative. A June 2007 VA treatment report reflects that he had resolved chest pain. A December 2011 VA treatment report reflects that an echocardiogram was normal and the examiner determined that there was no evidence of any cardiac disease. At the Veteran's most recent VA examination, the February 2016 examiner opined that the Veteran's heart disorder had not been diagnosed, therefore was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service asbestos exposure. The examiner noted that there was no evidence of a cardiac condition at this time. Contrary to these clinical findings, the Veteran testified that his VA physician's nurse had informed him that he had congestive heart failure at the Board videoconference hearing in September 2012. In this regard, the February 2016 VA examiner noted that the Veteran's cardiac exams and echocardiograms performed during his chemotherapy as standard of care and again five years after completion of chemotherapy never showed any evidence of cardiac failure. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In the current appeal, the Board acknowledges that the medical evidence and the Veteran's statements establish that he complains of chest pain. However, there is no evidence to show that he has been assigned a diagnosis of a separate disability to account for the symptom. In the absence of evidence showing a heart disorder, there is not a disability shown for which service connection may be granted. Without evidence of demonstration of a current disability, the Board need not address the other elements of service connection. In conclusion, the weight of the evidence demonstrates that the Veteran does not currently have a heart disorder. As such, the Board finds that a preponderance of the evidence is against the claim. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. V. Diabetes Mellitus, Type 2, and Hodgkin's Disease The Veteran does not contend that he ever set foot in Vietnam. Rather, he contends that he was exposed to herbicide while on board the USS Chicago, (CG11) anchored in Da Nang Harbor in 1969. He contends that he was exposed to herbicide when he wiped down all the oil that was around the outside of a utility boat that had gone ashore to Da Nang. See February 2017 Transcript at page 3. There is no question the Veteran has diabetes mellitus and Hodgkin's disease. Thus, the question before the Board is whether these disabilities are directly related to service or due to exposure to herbicides. Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, certain chronic diseases, including diabetes mellitus and Hodgkin's disease, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101 , 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Also, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The diseases associated with herbicide exposure for purposes of the presumption are specified by regulation and include, but are not limited to, diabetes mellitus, type 2, and Hodgkin's disease. 38 C.F.R. § 3.309 (e). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). In the decision herein, the Board will resolve reasonable doubt in the Veteran's favor and award service connection for diabetes mellitus, type 2, and Hodgkin's disease based on his herbicide exposure in Vietnam. At the outset, the Board finds that the medical evidence of record clearly reflects that the Veteran has been diagnosed with, and has received treatment for, diabetes mellitus, type 2, and Hodgkin's disease. There is evidence to support the Veteran's contention that he was exposed to herbicides while stationed on board the USS Chicago. The National Personnel Records Center (NPRC) confirmed that the Veteran had served aboard the USS CHICAGO (CG 11), which was in the official waters of the RVN from May 21, 1969 to July 2, 1969 and July 12, 1969 to "25-Aug-1." (See NPRC's August 2010 report). Deck logs of the USS CHICAGO (CG-11), for the period commencing on May 1, to May 31, 1969, and a December 2010 Joint Services for Records and Research Center (JSRRC) report show that the vessel had entered Da Nang Harbor on May 22, 1969 and that a utility boat was placed in the water at 0732 hours, departed for the Deepwater Piers at Da Nang with eight (8) un-named passengers (the Veteran has conceded that he was not one of the eight (8) passengers), and returned at 0827 hours. The USS CHICAGO (CG-11) departed Da Nang Harbor the same day for the Gulf of Tonkin. Other evidence of record that is supportive of the claim is a July 2010 Agent Orange Registry History and Physical Examination, where the Veteran reported chest pain, diabetes mellitus II, and Hodgkin's disease and a July 2010 Agent Orange Registry letter, where the Veteran was diagnosed with exposure/toxic effect of Agent Orange, with claimable affects: diabetes mellitus and Hodgkin's disease. In reviewing the evidence of record, the Board finds that the evidence indicates that the Veteran was exposed to Agent Orange. Although no one piece of evidence is dispositive in this case, the Veteran's contention of having been exposed to Agent Orange when he wiped down all the oil that was around the outside of a utility boat that had gone ashore to Da Nang is consistent with the information from the NPRC. The Veteran's credibility is bolstered by the accompanying evidence of record. Given the foregoing, the Board resolves reasonable doubt in favor of the Veteran and finds that he was exposed to Agent Orange during his service on board the USS Chicago. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As noted previously herein, diabetes mellitus, type 2, and Hodgkin's disease are diseases associated with herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309. VA medical records suggest that these diseases manifested to a compensable degree after service. Id. Accordingly, service connection for diabetes mellitus, type 2, and Hodgkin's disease as a result of inservice herbicide exposure is warranted. ORDER Service connection for a heart disorder, to include as due to Agent Orange and asbestos exposure, is denied. Service connection for diabetes mellitus, type 2, as a result of inservice Agent Orange exposure, is granted. Service connection for Hodgkin's disease as a result of inservice Agent Orange exposure, is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs