Citation Nr: 1809986 Decision Date: 02/14/18 Archive Date: 02/27/18 DOCKET NO. 12-16 486A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a heart condition claimed as due to herbicide exposure. 2. Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure. 3. Entitlement to service connection for peripheral neuropathy of the lower extremities claimed as due to herbicide exposure or secondary to diabetes mellitus, type II. 4. Entitlement to service connection for bronchitis. REPRESENTATION Appellant represented by: Robin E. Hood, Attorney ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran had active duty in the United States Army from May 1962 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This case was previously before the Board in November 2014 where the petition to reopen the claim of service connection for bronchitis was granted, and issues of service connection for a heart disorder, diabetes mellitus, type II, peripheral neuropathy of the lower extremities, bilateral cataracts, and bilateral glaucoma were remanded for additional evidentiary development. Regarding the issues of service connection for bilateral cataracts and bilateral glaucoma, in August 2013, the RO denied the Veteran's claims. A notice of disagreement (NOD) was filed in September 2013. The matter remanded by the Board for further development in November 2014. A statement of the case (SOC) was issued in May 2017 reflecting a continued denial of the claims. However, there is no indication that the Veteran completed and filed a substantive appeal. While the Board acknowledges that the Veteran's former representative submitted an Appellant's Brief dated July 2017, which included arguments in relation to the matters herein, but without a timely filed appeal, the Board finds that the issues have not perfected an appeal. Furthermore, such issues have also not been certified to the Board. Therefore, the issues of service connection for bilateral cataracts and bilateral glaucoma are not on appellate review. See 38 C.F.R. §§ 20.202, 20.302 (2017). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. FINDINGS OF FACT 1. The Veteran had service in Okinawa, Japan during the period from July 20, 1963 to January 25, 1965, but the evidence does not show that he was in-fact exposed to herbicides, including Agent Orange, while on active duty. 2. The Veteran's heart condition was not shown in service or for many years thereafter; and the preponderance of the evidence fails to establish that the condition is etiologically related to service, including herbicide exposure therein. 3. The Veteran's diabetes mellitus was not shown in service or for many years thereafter; and the preponderance of the evidence fails to establish that the condition is etiologically related to service, including herbicide exposure therein. 4. The preponderance of the evidence fails to establish that the Veteran's peripheral neuropathy of the lower extremities is related to service or due to a service-connected disability. 5. The preponderance of the evidence of record is against a finding that the Veteran has a current disability manifested by bronchitis. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for service connection for peripheral neuropathy of the lower extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 4. The criteria for entitlement to service connection for bronchitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). Further, a review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). No VA examination was requested in relation to the issue of service connection for a heart condition, diabetes mellitus, type II, and peripheral neuropathy of the lower extremities. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As described more fully below, the outcome of this matter largely turns of the question of whether the Veteran was exposed to herbicide agents during his active service. Such would trigger the presumption of service connection and render the need to afford the Veteran an examination for a nexus moot. The record is also absent any medical or lay evidence that the Veteran's claimed heart condition, diabetes mellitus or neuropathy of the lower extremities had onset in service or within a year of discharge or that such are otherwise etiologically related to active service outside the assertion of exposure to herbicide agents. Absent evidence of an in-service injury or disease to which a competent medical opinion could relate the claimed disabilities, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claims for service connection. See 38 U.S.C. § 5103A(a)(2) (2012) (VA "is not required to provide assistance to a claimant... if no reasonable possibility exists that such assistance would aid in substantiating the claim"). As such, VA examinations are not necessary. The Board notes that it has thoroughly reviewed all the evidence of record in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Under these circumstances, the Board concludes that appellate review may proceed without prejudice to the Veteran. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires competent evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2014). This includes a disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including diabetes mellitus, when manifested to a compensable degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. §1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). 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. Id. The applicable criteria provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Diabetes mellitus, type II, is included in this list. 38 C.F.R. § 3.309(e). Notably, VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). Presumptive herbicide exposure requires a presence on the ground or in the inland waterways of the country; service on deep-water offshore vessels is insufficient to trigger the presumption. 38 C.F.R. § 3.307(a)(6)(iii). Instead, it requires service on the landmass and includes service on the inland waterways. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). Service Connection for a Heart Condition, Type II Diabetes Mellitus, and Peripheral Neuropathy of the Lower Extremities The Veteran alleges exposure to herbicides during his service at Okinawa, Japan which resulted in his claimed disabilities. Specifically, he states being exposed to Agent Orange while repairing equipment that was used in Vietnam and also alleges exposure while being in proximity to herbicides used to control weeds and vegetation at the military base in Japan. See Statements in Support of Claim dated March 2012 and December 2015. As a preliminary matter, the Board notes that the Veteran did not serve in the Republic of Vietnam, Korea, or Thailand, nor does he contend visitation to those locations. The Veteran's DD Form 214 and military personnel records reflect service in Okinawa, Japan during the period from July 20, 1963 to January 25, 1965 with a military occupational specialty (MOS) as a Radio Relay Operator. As such, the provisions related to presumptive exposure to herbicides are therefore not for application here. 38 C.F.R. § 3.307(a)(6)(iii); VA Adjudication Procedures Manual M21-1MR, IV.ii.2.C.10. However, as the Veteran alleges exposure to herbicides in an area outside of Vietnam or Korea, that he was exposed to Agent Orange during his service in Okinawa, Japan, the Board observes that the RO sufficiently complied with the specific development mandated in the VA Adjudication Procedures Manual M21-1MR. The record reflects the attempts made by the RO to verify the Veteran's reported exposure to herbicides. In March 2016, Compensation Service indicated that the Department of Defense (DOD) provided a list of locations outside Vietnam and the Korean Demilitarized Zone where Agent Orange was used, tested, or stored. Compensation Service's response noted that the list does not contain names of individuals involved with Agent Orange and does not reference routine base maintenance activities, such as range management, brush clearing, and weed killing. It further notes that such activities were accomplished with commercial herbicides on all military bases worldwide, and that commercial herbicides do not fall under the regulations governing tactical herbicides, such as Agent Orange, 38 C.F.R. § 3.307(a)(6)(i). Regarding the Veteran's contentions, Compensation Service concluded that DOD has not identified any location on the island of Okinawa where Agent Orange was used, tested, or stored as it was developed for combat operations in Vietnam. Additionally, Okinawa was not on the Agent Orange shipping supply line. Furthermore, in directly addressing the Veteran's assertions of exposure through radio equipment used in Vietnam, Compensation Service found no scientific evidence demonstrating that "being in the vicinity of aircraft or equipment previously used in Vietnam can be considered as exposure to active Agent Orange or can result in long-term health effects." Therefore, Compensation Service could provide no evidence to support the Veteran's claim that he was exposed to herbicides in Okinawa. Based on the above, the Board finds no probative evidence of record supporting a finding that the Veteran was exposed to herbicide during his active service. In this regard, the Board relies on the research by DOD and March 2016 response by Compensation Service conducted based on historical documents. Moreover, corroborating evidence of actual, direct exposure to herbicides in service is also not established. Accordingly, there is no basis for awarding service connection for any of the Veteran's claimed disabilities on the basis of exposure to herbicides. While the Veteran has not established service connection based upon herbicide exposure, the Board must still consider whether any of the Veteran's claimed disabilities are directly related to service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Board finds there is no probative evidence of a nexus between the Veteran's military service and the development of a heart condition, diabetes mellitus type II, or peripheral neuropathy of the lower extremities. The Veteran's service treatment records are entirely negative for any complaints, findings or diagnosis relating to the Veteran's claimed disabilities. He had normal clinical findings on separation examination and no symptoms were reported regarding the same. See Report of Medical Examination of August 1966. In fact, post-service records reflect that a heart condition and diabetes mellitus were not diagnosed until 1995, approximately 29 years after separation. Therefore, the record does not show that the Veteran's heart condition or diabetes mellitus, type II, had their onset during his active service or are otherwise etiologically related to his active service on a direct basis. In addition, there is no competent evidence establishing peripheral neuropathy of the lower extremities as due to a service-connected disability on a secondary basis. Private treatment records of January 1999 reflect a notation of diabetes mellitus, type II, with neuropathy. As such, the preponderance of the evidence is against a finding of service connection for heart condition, diabetes mellitus, type II, and peripheral neuropathy of the lower extremities. The Board has also considered whether the Veteran is entitled to presumptive service connection based on chronic disease or service connection based on continuity of symptomatology. However, evidence indicates that the Veteran underwent a coronary artery bypass graft in March 1995, approximately 29 years after separation from service. Likewise, the Veteran's diabetes mellitus type II was not diagnosed until March 1995, approximately three decades after separation. As such, there is no evidence, lay or medical, that the disease began in service and continued or that it was diagnosed within the first year following his separation from service. See 38 C.F.R. §§ 3.303(b), 3.309. Therefore, the Veteran is not entitled service connection based on the presumptions in favor of chronic diseases or on the basis of continuity of symptomatology. Lastly, the Board recognizes the Veteran's contentions that his claimed disabilities are related to service, particularly due to herbicide exposure. However, as a layperson, without any demonstrated, specialized knowledge concerning the etiology of these disabilities, his allegations are not competent evidence of a medical nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Further, he is not competent to independently opine of exposure to Agent Orange as this involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As the evidence does not show the Veteran has expertise in medical matters involving complex medical questions, the Board concludes that the Veteran's assertions in this regard are not competent and therefore not probative of whether any of his conditions are related to service. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection of a heart condition, diabetes mellitus, and peripheral neuropathy of the lower extremities. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claims must be denied. Service Connection for Bronchitis In November 2014, the Board granted the Veteran's petition to reopen a previously denied claim for service connection for bronchitis, and remanded the issue for a new VA examination. The Veteran's service treatment records reflect he was treated in September 1962 for complaints of a cough. He was assessed with a diagnosis of "bronchitis, acute, organism undetermined." But, subsequent medical records contain no evidence of any ongoing treatment or findings of residuals of the condition. A periodic examination report of November 1963 reflects normal lung findings with no notations regarding defects or diagnosis of a pulmonary condition. Likewise, an August 1966 separation examination report shows normal clinical evaluations with no pulmonary symptoms reported. Post-service records are negative for any ongoing treatment for a chronic lung or pulmonary condition. The Veteran was afforded a VA examination in March 2015. After thoroughly reviewing the claims file, conducting diagnostic tests and physical examination of the Veteran, the VA examiner opined that "there is no objective evidence for any residuals of or any condition related to the in-service acute and transitory bronchitis." Citing to the Veteran's service treatment records and pertinent medical evidence of record, the examiner explained that the Veteran's "acute bronchitis resolved prior to his separation in 1963" and the condition not present on his separation examination in 1966. The examiner further found normal pulmonary function testing (PFT) findings which were not consistent with any chronic lung condition. Lastly, there was no current evidence of obstructive ventilator disorder to suggest chronic obstructive pulmonary disease (COPD) or asthma. The examiner commented that any such pulmonary condition identified in the future would be related to the Veteran's extensive history of smoking, as he described that he "smoked for 56 years" since age 14 years up to "3 to 4 packs per day" and is still smoking "a pack a day." Review of the record shows that the Veteran's bronchitis condition has not resulted in a current disability for which service connection may be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding the existence of a current disability is the cornerstone of a claim for VA disability compensation). The evidence of record clearly demonstrates findings that the condition "resolved prior to his separation" with no objective evidence for "any residuals of or any condition related to the in-service acute and transitory bronchitis." In that regard, the Board notes that the term "disability," as used for VA purposes, refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board further emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1101. There is no indication of a chronic disability manifested by the Veteran's "resolved" bronchitis condition or any functional impairment from such condition. In so finding, the Board assigns significant probative value to the March 2015 VA medical opinion of record. Notably, the VA opinion includes exhaustive notes based on a comprehensive review of the Veteran's claims file. The examiner provides a well-reasoned analysis of the case in support her conclusion that there is no objective evidence of any present diagnosis for a respiratory or pulmonary condition. In fact, medical records are absent for any ongoing treatment or recurrent symptoms of the acute bronchitis treated in service. Further, the examiner points out the Veteran's extensive history of smoking. Significantly, neither the Veteran nor his representative has presented or identified a medical opinion that supports the claim. As such, in the absence of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. Accordingly, service connection is not warranted for prostate cancer. The Board recognizes the Veteran's contentions that his acute bronchitis is related to service. Although the Veteran is certainly capable of describing the history in this case as well as respiratory symptoms in and after service, he is not competent to independently opine as to whether a disability manifested by such symptoms or to render a medical diagnosis as such is not a type of condition that is capable of lay observation. The Veteran's statements regarding the cause of his bronchitis are lay statements that purport to provide a nexus opinion linking the residuals of a condition to service. As a lay person, the Veteran lacks the capability to provide evidence that requires specialized knowledge, skill, experience, training or education. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board finds the Veteran's statements not competent medical evidence for this purpose. Therefore, his assertions, standing alone, have little probative value and the Board assigns more weight to the medical opinions provided by VA examiners. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection of bronchitis. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a heart condition is denied. Service connection for diabetes mellitus, type II, is denied. Service connection for peripheral neuropathy of the lower extremities is denied. Service connection for bronchitis is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs