Citation Nr: 1808915 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 08-17 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for multiple myeloma, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for vertigo, claimed as dizziness. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder condition. ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1964 to October 1968. The Veteran passed away in October 2013. The Appellant is his surviving spouse, and is a substituted claimant. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction has since been transferred to the RO in Waco, Texas. The Board notes that in December 2017, the Appellant withdrew a request for a hearing before the Board. The issues of entitlement to service connection for vertigo and whether new and material evidence has been received to reopen a claim of entitlement for a left shoulder condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served onboard the USS Johnston (DD-821) from March 1967 to October 1968. The command history of the USS Johnston reveals that the ship entered the Vietnam Combat Zone on January 7, 1968 and began its final departure from the Combat Zone on May 6, 1968. The command history does not document that the ship docked, transited inland waterways, or that personnel stepped foot in the Republic of Vietnam. It is also not shown, nor did the Veteran contend, that the Veteran's service included duty in, or visitation to, the Republic of Vietnam. 2. The preponderance of the evidence is against a finding that the Veteran had "service in the Republic of Vietnam" as contemplated by VA regulation or that he was otherwise exposed to herbicide agents during active duty service. 3. The evidence does not show that the Veteran's multiple myeloma was present during the Veteran's active service, nor did it manifest to a compensable degree within one year of service separation. The record contains no indication that multiple myeloma is causally related to active service or any incident therein. CONCLUSION OF LAW The criteria for entitlement to service connection for multiple myeloma, to include as a result of exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Appellant has not 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. Service Connection for Multiple Myeloma Pertinent Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). For chronic diseases, the nexus element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). 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. "Service in the Republic of Vietnam," for the purposes of this presumption, includes service in 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). Under 38 C.F.R. § 3.309(e), a presumption of service connection arises for a Vietnam Veteran (presumed exposed to an herbicide agent) who develops one of several enumerated conditions associated with herbicide agent exposure, to include ischemic heart disease. The enumerated diseases shall be service connected, even if there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 (2012); 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. §3.309(e). Analysis The Veteran underwent testing for multiple myeloma in January 2006 and received a confirmed diagnosis in March 2006, thus satisfying the first element of service connection. His contention was that multiple myeloma was related to exposure to herbicide agents, as a result of his service aboard the USS Johnston between March 1967 and October 1968. Specifically, he noted that he worked in the engine room and that the only air in the room came in directly through vents from outside the ship. He alleged that the USS Johnston was docked offshore on the gun line during the Tet Offensive and took on enemy fire from the shore. Therefore, the Veteran claimed, any herbicide agents sprayed on land would have been close enough to make it to the ship. The Veteran did not contend that he ever stepped foot onshore in the Republic of Vietnam. VA obtained the command history for the USS Johnston from the Defense Personnel Records Information Retrieval System (DPRIS). The history reveals that the USS Johnston departed for a Western Pacific (WESTPAC) deployment on November 15, 1967. The history further reveals that the USS Johnston entered the Vietnam Combat Zone on January 7, 1968 and conducted plane guard operations for the USS Ranger. On February 1, 1968, the ship entered dry-dock at Subic Bay, Republic of the Philippines (RP); arrived at the I Corp Tactical Zone (CTZ) on February 8, 1968, for Naval Gunfire Support (NGFS) assignment; and received hostile fire from the enemy near the Demilitarized Zone (DMZ) on February 9 and 12, 1968. The USS Johnston commenced a three-day anti-submarine warfare (AWS) exercise period on March 23, returned to the gun-line on March 28, 1968, and commenced operations on Yankee Station, off the coast of Vietnam, with the USS Ranger on April 4 and 22, 1968. The ship began its final departure from the Combat Zone on May 6, 1968, was in port on Subic Bay on May 7, and returned to homeport in San Diego, California on June 6, 1968. The history does not document that the ship docked, transited inland waterways, or that personnel stepped foot in the Republic of Vietnam. The deck logs do not document that the USS Johnston operated in the mouth of the Mekong River. In January 2014, VA requested confirmation from the United States Navy of the Veteran's service in the Republic of Vietnam. VA received the response that the United States Navy was unable to determine whether the Veteran served in the Republic of Vietnam and there is no conclusive proof of in-country service. Additionally, VA maintains a list of United States Navy and Coast Guard ships associated with military service in Vietnam and exposure to herbicide agents. The list, most recently updated January 1, 2018, does not include the USS Johnston among the associated vessels. The Board has considered the documents submitted by the Veteran regarding the USS Johnston, including American Legion publications and website printouts. However, the Board finds that they are insufficient to demonstrate that the Veteran had service in the Republic of Vietnam, pursuant to 38 C.F.R. § 3.307(a)(6)(iii). Thus, while the Veteran suffered from multiple myeloma, a diagnosed disease listed under 38 C.F.R. § 3.309(e), there is no probative evidence that the USS Johnston traveled to the inland waterways or otherwise docked, moored, or anchored in the "brown waters" of Vietnam or that the Veteran was ever present in Vietnam, nor that he had actual herbicide exposure. Thus, the Board finds that the evidence of record does not support a finding that the Veteran is entitled to presumption of herbicide exposure. Moreover, the Veteran has not contended, and the evidence does not show, that he is entitled to service connection based on reasons other than herbicide exposure. His service treatment records do not indicate that he was given a diagnosis of, or treated for, multiple myeloma during service. There is no evidence that multiple myeloma manifested to a degree of 10 percent or more within one year from the date of his separation from service. Indeed, as noted above, the Veteran first received indications of multiple myeloma in January 2006 and a diagnosis was confirmed in March 2006. The Board notes that the Remand section below includes a request for Social Security Association (SSA) disability records. Those records are not pertinent to the issue of entitlement to service connection for multiple myeloma. The Veteran's theory of entitlement relies specifically on exposure to herbicide agents in Vietnam. Furthermore, the record shows that the Veteran received approval for SSA disability benefits in April 2004, while multiple myeloma was not diagnosed until nearly two years later, in March 2006. Therefore, SSA records would not yield any probative evidence regarding a nexus between the disease and the Veteran's service. The preponderance of the evidence is unfavorable to the claim of entitlement to service connection for multiple myeloma, to include as due to exposure to herbicide agents. Accordingly, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for multiple myeloma, to include as due to exposure to herbicide agents, is denied. REMAND An April 2004 letter reveals that the Veteran was in receipt of disability benefits from the Social Security Administration (SSA). However, SSA records are not associated with the claims file. The Veteran stated in a February 2010 VA examination that he was unable to work due to vertigo and SSA records may contain more information regarding the cause of vertigo. It is also possible that SSA records may provide an evaluation of the Veteran's claimed left shoulder condition that would be considered new and material evidence. Accordingly, upon remand, SSA records should be obtained. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Furthermore, regarding the claim for vertigo, the Veteran contended that his symptoms of dizziness were related to cerebral trauma from two motor vehicle accidents he experienced during service. The two accidents are documented in service treatment records. The first accident occurred on March 1, 1965. After the accident, the Veteran lost consciousness for an unknown length of time. He was taken to the hospital, where he complained of pain in the left occipital area of the skill. He was ultimately hospitalized for 182 days, due primarily to a fractured tibia and fibula, also incurred in the accident. The second accident occurred November 17, 1966. Service treatment records show that the Veteran was thrown against the door of the car as the car rolled. A December 1965 note in the service treatment record shows that the Veteran had been having headaches and dizziness since being released from the hospital after the first motor vehicle accident. The doctor indicated an impression of post-concussion syndrome. The Veteran had also been having difficulty concentrating and sleeping. The Veteran's October 1964 service entrance examination notes that the Veteran incurred a head injury prior to service in August 1963 and experienced residual headaches and "postural dizziness" at the time of entry to service. The Veteran's private medical records show an assessment of benign paroxysmal positional vertigo-the claimed disability- in March 2004. It is unclear whether the symptoms of postural dizziness the Veteran experienced at the time of entry to service represent a pre-existing condition related to his later diagnosed condition, or whether the two are separate and unrelated. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When a pre-existing condition is noted upon entry to service, "the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also, 38 U.S.C. § 1153; 38 C.F.R. § 3.306. If the disorder is noted upon entry into service, the Veteran has the burden of establishing aggravation by showing that the pre-existing disorder has increased in severity as a result of active duty service. See 38 U.S.C. § 1153; Wagner, 370 F.3d at 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). If such an increase in severity is shown, it is presumed to have been aggravated, absent clear and unmistakable evidence that the increase in disability is due to the natural progression of the disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). In this case, the Board must first determine whether the benign paroxysmal positional vertigo diagnosed post-service is the same condition as the postural dizziness that existed prior to service. If so, the Board must next determine whether the condition was aggravated as a result service. If not, the Board must determine whether it is at least as likely as not that benign paroxysmal positional vertigo is causally related to service, to include the two motor vehicle accidents noted by the Veteran. The Veteran underwent a VA examination in February 2010. The examiner concluded that it was less likely than not that the Veteran's benign paroxysmal positional vertigo was related to injuries sustained in service, however the examiner did not provide any explanation for this conclusion. Furthermore, the conclusion did not address the question of whether the current disability pre-existed service. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The February 2010 opinion did not provide a reasoned explanation addressing all questions at hand; therefore a new medical opinion is necessary to address and clarify the issues noted above. Accordingly, the case is REMANDED for the following action: 1. Ask the SSA to provide copies of any records in its possession pertaining to its consideration of the Veteran's application for SSA benefits, to include any medical records considered in making a decision on that application. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 2. Arrange to have an appropriate medical examiner provide an opinion regarding the Veteran's benign paroxysmal positional vertigo. The entire claims file, to include a complete copy of this remand, must be made available to the examiner. The examiner should answer the following: a) Is the benign paroxysmal positional vertigo that was diagnosed in March 2004 the same condition as postural dizziness that was noted on the Veteran's service entrance examination in October 1964? That is, has the Veteran claimed service connection for a condition that existed prior to service? b) If the answer to "a)" is affirmative, that is, if the diagnosed condition existed prior to service, is it at least as likely as not that the condition increased in severity during service? c) If the answers to both "a)" and "b)" are affirmative, is it clear and unmistakable (i.e. undebatable) that the increase in disability is solely due to the natural progression of the condition? d) If the answer to "a)" is negative, that is, if the diagnosed condition did not exist prior to service, is it at least as likely as not (50 percent or greater probability) that it was caused by or related to an in-service injury or event, to include the March 1965 and November 1966 motor vehicle accidents? The examiner should set forth all opinions, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an identification of the evidence used to reach any conclusion and an explanation of the medical significance of such evidence. If the examiner determines that the absence of evidence is medically significant, he or she should explain the reasoning for its significance. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Appellant should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs