Citation Nr: 18104683 Decision Date: 05/22/18 Archive Date: 05/22/18 DOCKET NO. 11-24 226 DATE: May 22, 2018 ORDER Entitlement to service connection for peptic ulcer disease (PUD), to include as a result of diabetes mellitus (DM) and/or asbestos or Agent Orange (AO) exposure, is denied. Entitlement to service connection for prostate cancer, to include as due to AO exposure, is denied. Entitlement to special monthly compensation (SMC) based on the need for Aid and Attendance (A&A) and/or Housebound (HB) status is denied. FINDINGS OF FACT 1. The Veteran did not have service in-country in Vietnam during his active service, service in the waters offshore involving duty or visitation in the Republic of Vietnam, or service in the inland waters of Vietnam. 2. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran’s PUD is etiologically related to an in-service injury, event, or disease, to include exposure to AO and/or asbestos, or that PUD is secondary to a service-connected disability. 3. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran’s prostate cancer is etiologically related to an in-service injury, event, or disease, to include exposure to asbestos and/or AO, or that prostate cancer is secondary to a service-connected disability. 4. The Veteran’s service-connected disabilities do not render him so helpless as to require the regular A&A of another person to perform personal care functions of everyday life or to protect himself from the hazards and dangers incident to the daily environment; or render him permanently HB. CONCLUSIONS OF LAW 1. The criteria for entitlement to PUD, to include as result of DM and/or asbestos or AO exposure, have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to service connection for prostate cancer, to include as a result of AO exposure, have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. The criteria for A&A/HB have not been satisfied. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1962 to September 1966. In July 2014, the Veteran and his wife, as well as a shipmate and his wife, testified at a Board videoconference hearing. A transcript of that hearing is of record. 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., carcinoma) 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, show 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 (Court) 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). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a veteran’s nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (2017). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Agent Orange Regulations further provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) (2017) 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) (2017) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin’s disease; multiple myeloma; non-Hodgkin’s lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Type II diabetes mellitus, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2017). More recent amendments to 38 C.F.R. § 3.309(e) (2017) include hairy cell leukemia and other chronic B-cell leukemias, Parkinson’s disease, and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina) as diseases associated with herbicide exposure. However, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), Note 2 (2017). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Further, VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for certain diseases including skin cancers. See 75 Fed. Reg. 81332 (Dec. 27, 2010). Asbestos Additionally, the Veteran has alleged PUD and prostate cancer as secondary to exposure to asbestos during service. Regarding asbestos-related claims, there is no specific statutory guidance and the Secretary has not promulgated any regulations. Nevertheless, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1, Part VI. The Court has held that VA must analyze an appellant’s claim of service connection for asbestosis or asbestos-related disabilities using the administrative protocols found in the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran’s Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Analysis The procedural history as to this case was reported in detail in the August 2017 decision/remand and will not be repeated here. That document also reported in detail the pertinent evidence in this case, consisting of both lay and medical evidence available at that time. That also will not be repeated here. However, all relevant medical and lay evidence, to include such added to the record since the 2017 remand will be summarized and discussed where appropriate. Further, the Board notes that it has reviewed the evidence in its entirety, but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). 1. PUD As noted in the Board’s August 2017 remand decision, the evidence of record does not support the Veteran’s claim that he was exposed to herbicides during active duty aboard a ship that operated on the inland waterways of Vietnam or that his ship docked to shore in Vietnam at any time during his active military duty. See article titled Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents and article detailing the history of the USS Coral Sea. Thus, inservice exposure to AO is not conceded. While no presumption of herbicide exposure has been satisfied, the Veteran is nevertheless entitled to show that he was actually exposed to herbicides while in service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Veteran has asserted direct exposure to AO from aircraft which flew through AO and returned to ship, and also by barrels of AO which were aboard. It is further noted that the Veteran has also claimed that his PUD resulted from inservice asbestos exposure. As to this claim, the Board concluded in August 2017 that additional development was warranted. To that end, the Board remanded the claim for an appropriate examination to determine the nature and etiology of his PUD. The requested VA examination was conducted in September 2017. The examiner noted that the claims file was reviewed and that an in-person examination was conducted. She noted that the Veteran’s asbestos exposure in service was conceded. Her opinion was that it was less likely than not that the Veteran’s PUD was related to his asbestos exposure. For rationale, she pointed to medical literature which did not show a direct or indirect relationship between PUD and asbestos exposure. In light of the evidence of record and as already reported, the preponderance of the evidence is against a finding that the Veteran served in-country in Vietnam. There is no evidence that the Veteran’s ship, the USS Coral Sea, operated in inland waters. Based on the foregoing, the Veteran did not have “service in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6) (iii) (2017). For the above reasons, as there is no credible evidence of service in Vietnam, AO exposure is not indicated. Thus, it cannot be found that his PUD resulted from any alleged inservice AO exposure. The Board is cognizant of the holding in Bardwell v. Shinseki, 24 Vet. App. 36 (2010), in which the Court held that a layperson’s assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Here, the record is negative for any evidence that the Veteran was exposed to herbicides other than his own assertions. While the Veteran is competent to describe what he experienced and witnessed in service, there is no evidence that the Veteran is competent to determine what, if any, chemicals or gases adhered to the exterior of aircraft or were washed off aircraft while aboard the USS Coral Sea. In this regard, he has not been shown to have the requisite knowledge or expertise to make such a complicated determination as to the chemical makeup of a substance. As such, the evidence is not sufficient to establish that the Veteran was exposed to herbicide agents during service. The Board also notes that herbicides were not transported, stored, or used aboard United States Navy ships. Furthermore, the Veteran’s service treatment records (STRs) are negative for any treatment or indication that the Veteran was exposed to herbicides in service. As such, the evidence does not support the contention that the Veteran was exposed to herbicides during service. Moreover, under a direct theory of entitlement to service connection, there is no evidence that the Veteran’s PUD had its onset in service or was otherwise related to service. A review of the Veteran’s STRs does not indicate any complaints of symptomatology associated with PUD. Moreover, there is no report of this disorder until many years after discharge. Under a theory of secondary service connection, the Veteran has argued that service connection is warranted for PUD on the basis that it was either caused or aggravated by his DM. It is pointed out, however, that service connection for DM has been denied. Thus, as a matter of law, service connection for PUD cannot be warranted on a secondary basis due to DM. In conclusion, the competent, probative evidence does not demonstrate that the Veteran served within the land border or internal waters of the Republic Vietnam, and, therefore, exposure to herbicides is not presumed. In addition, the competent, probative evidence does not demonstrate that the Veteran was actually exposed to herbicides during active duty. Moreover, the competent, probative evidence does not demonstrate that the Veteran’s PUD resulted from his conceded exposure to asbestos. Finally, the competent, probative evidence does not indicate that PUD had its onset during active duty or was otherwise related to active duty. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. Accordingly, the claim of entitlement to service connection for PUD must be denied. 38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 2. Prostate Cancer It is also claimed that service connection is warranted for prostate cancer, to include as due to AO exposure. This claim fails for the same reasons that the claim for service connection for PUD due to AO exposure failed as discussed in detail above. The evidence simply does not include credible evidence that the Veteran was actually exposed to AO during active service, to include while aboard the USS Coral Seas. His lay assertions indicating inservice exposure are not sufficient to establish that such occurred. See Bardwell, supra. Furthermore, his STRs are negative for prostate cancer, and the condition was first noted in 2016, many years after service discharge. There is no medical report of record which links his prostate cancer to any incident of service. Thus, service connection is not warranted for prostate cancer based on direct occurrence or as a result of alleged inservice herbicide exposure. 3. Aid and Attendance/HB The Veteran also claims entitlement to SMC based on A&A or HB status. Under 38 U.S.C. § 1114(l) (2012), SMC is payable if, as the result of service-connected disability, the Veteran has the anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. § 3.350(b) (2017). Based on the evidence presented, the Board finds that SMC based on A&A is not warranted. The Veteran is service connected for tinnitus (rated as 10 percent disabling) and bilateral hearing loss (rated as noncompensable). Significantly, the evidence of record does not document that the Veteran’s service-connected disabilities result in anatomical loss or loss of use of both feet, or of one hand and one foot; blindness in both eyes with visual acuity of 5/200 or less; permanent bedridden status; or the need of regular aid and attendance of another person. Thus, the Veteran is not entitled to SMC based on a need for regular A&A under 38 U.S.C. § 1114(l) (2012). Regarding SMC based on HB status, the Board notes that the Veteran does not meet the rating criteria for SMC under 38 U.S.C. § 1114(s) (2012), and there is no evidence that shows he is permanently housebound due to service-connected tinnitus and hearing loss. Thus, SMC for HB status is also not warranted. In sum, the evidence does not support a grant of SMC based on A&A or housebound status. As the preponderance of the evidence is against the claim, there is not reasonable doubt to be resolved, and the claim must be denied. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (20107); Gilbert, supra. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Hal Smith,Counsel