Citation Nr: 19166124 Decision Date: 08/27/19 Archive Date: 08/26/19 DOCKET NO. 18-49 629 DATE: August 27, 2019 ORDER Entitlement to service connection for Paget’s disease (also known as osteitis deformans) is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran served in the United States Air Force in Guam from June 1966 to April 1970, during the Vietnam War, but did not step foot in the Republic of Vietnam and was not otherwise exposed to an herbicide agent while on active duty. 2. The preponderance of the evidence shows that Paget’s disease was not present in service or until many years thereafter and that it is not related to service or to an incident of service origin, nor was it caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for Paget’s disease have not been met. 38 U.S.C. A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from June 1966 to April 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2017 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. The Veteran claims, in substance, that he is entitled to service connection for Paget’s disease because it was caused by his military service, including his in-service exposure to various environmental factors, in addition to possible Specifically, the Veteran reported to the VA Examiner that he believed that his Paget’s disease was a result of his exposure to various environmental factors such as contaminated drinking water and contaminated laundry facilities, paint thinners, jet fuel and gasoline, methyl ethyl ketone, as well as radon from the military housing units. The Veteran also surmises that he may have also been exposed to herbicide agents during this time period; however, he lacks specificity with regard to this assertion and provides no support that will help in further buttressing his claim that this problem is based on service nearly 50 years ago. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). As to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of applying the herbicide presumption, “service in Vietnam” includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to a current disability, the post-service record shows the Veteran being diagnosed with Paget’s disease. See, e.g., records from Bay Pines VA Hospital dated June 2018. As to the herbicide exposure presumptions under 38 C.F.R. § 3.309(e), the Veteran does not claim, and official service department records do not show, that the Veteran ever stepped foot in the Republic of Vietnam during the Vietnam War or had other qualifying service. Given the negative records, the Board finds that the preponderance of the evidence is against the claim by the Veteran that he had actual exposure to an herbicide agent while on active duty. See Owens, supra. Therefore, the Board finds that the Veteran is not entitled to a presumption of herbicide exposure. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Simply stated, the above facts would not give the Veteran the presumption of exposure required under the law (very generally, the need to be on the ground in Vietnam). Without the legal presumption of exposure, the Veteran’s claims fail. In any event, Paget’s disease (also known as osteitis deformans) is not on the list of presumptive disabilities for herbicides. As to establishing service connection based on proof of direct causation (see Stefl, supra), service treatment records indicate that the Veteran complained of pain in his back and legs in December of 1966, obtained no accompanying diagnosis. Further, the record does not show the Veteran being diagnosed with any of the claimed disorders in the first post-service year. Markedly, there is no diagnosis provided or reference to Paget’s disease until 2018, nearly 40 years after the Veteran’s service. ear See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. There is no basis to get a medial opinion in this case as there is no indication of a connection with this problem and service nearly 50 years ago, therefore, there would be not be a basis for a positive medical opinion. The service and post-service record only provides evidence against this claim, indicating a problem that began many years after service. This would include exposure to various environmental factors such as contaminated drinking water and contaminated laundry facilities, paint thinners, jet fuel and gasoline, methyl ethyl ketone, as well as radon from the military housing units. There is simply nothing in the record that supports such a finding. Indeed, other than his sole incident of complaints regarding back and leg pain, the Veteran’s record is negative for complaints of symptoms and/or diagnoses for the claimed disorder. See Colvin, supra; also see 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Hensley, supra. Similarly, the record does not show that the Veteran had a continued problem with Paget’s disease in and since service. In fact, as reported above, service treatment records, with the exception of one complaint, are negative for complaints, diagnoses, or treatment for these disorders. Likewise, the post-service record is negative for a history, complaints, or a diagnosis of them until decades after service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). Furthermore, the Board finds that the record does not show that the Veteran’s Paget’s disease is due to his military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, the Board finds that the criteria necessary to provide the Veteran with VA examinations to obtain etiology opinions have not been met as the record does not document his complaints, diagnoses, or treatment for any of the claimed disorders in-service or for decades after service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). The Board finds that the Veteran is competent to report on the events he experiences while on active duty, as well as manifestations of his disabilities, such as his chronic pain, particularly his affliction with his left hip, in addition to his leg and back pain, etc. Nonetheless, the Board finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide answers to these complex medical questions. See Davidson, supra. Lastly, the Board finds that the record does not show that the Veteran’s Paget’s disease is caused or aggravated by a service-connected disability because he is not service-connected for any disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.310; also see Allen, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claims of service connection for Paget’s disease. 38 U.S.C. A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claims, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Harrell, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.