Citation Nr: 19140061 Decision Date: 05/24/19 Archive Date: 05/23/19 DOCKET NO. 16-05 601 DATE: May 24, 2019 ORDER Entitlement to service connection for a mass of the neck is dismissed. Entitlement to service connection for a vision disability is dismissed. Entitlement to service connection for tuberculosis is dismissed. Entitlement to service connection for hypertension is denied. Entitlement to service connection for cirrhosis is denied. Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for diabetes is denied. Entitlement to service connection for neuropathy of the bilateral upper extremities is denied. Entitlement to service connection for neuropathy of the bilateral lower extremities is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran does not have confirmed herbicide exposure in service. 2. On January 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of this appeal concerning a mass of the neck, tuberculosis, and a visual acuity disability is requested. 3. Hypertension was not incurred in service, did not manifest to a compensable degree within a year of service separation, has not been chronic and continuous since service, is not due to an in-service disease or injury, and has not been caused or aggravated by a service-connected disability. 4. Hepatitis C was not incurred in service, did not manifest to a compensable degree within a year of service separation, has not been chronic and continuous since service, and is not due to an in-service disease or injury. 5. Cirrhosis was not incurred in service, did not manifest to a compensable degree within a year of service separation, has not been chronic and continuous since service, is not due to an in-service disease or injury, and has not been caused or aggravated by a service-connected disability. 6. Diabetes was not incurred in service, did not manifest to a compensable degree within a year of service separation, has not been chronic and continuous since service, and is not due to an in-service disease or injury. 7. Peripheral neuropathy of the bilateral upper extremities was not incurred in service, did not manifest to a compensable degree within a year of service separation, has not been chronic and continuous since service, is not due to an in-service disease or injury, and has not been caused or aggravated by a service-connected disability. 8. Peripheral neuropathy of the bilateral lower extremities was not incurred in service, did not manifest to a compensable degree within a year of service separation, has not been chronic and continuous since service, is not due to an in-service disease or injury, and has not been caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of a mass of the neck, tuberculosis and visual acuity disability by the appellant have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for cirrhosis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for entitlement to service connection for diabetes have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for neuropathy of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 7. The criteria for entitlement to service connection for neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1968 to April 1970. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during the January 2019 Board hearing, the veteran withdrew the issues of service connection for a mass on the neck, tuberculosis, and a visual acuity impairment, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Finally, service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for hepatitis C The Veteran seeks service connection for hepatitis C. He asserts he contracted hepatitis while receiving vaccinations during service, and service connection is therefore warranted. Current VA treatment records reflect a current diagnosis of hepatitis C; as such, the requirement for a current disability is met. Service treatment records are negative for a diagnosis of or treatment for any form of hepatitis. Hepatitis was first diagnosed in approximately 2006, according to the evidence of record. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Nevertheless, service connection may be granted if the competent evidence establishes the Veteran was infected with hepatitis in service. As noted above, the Veteran has asserted his hepatitis C is the result of inoculation with an airgun injector in service. Service treatment records confirm the Veteran was given an inoculation via injection in July 1969 while serving in Korea. He has also reported receiving various injections during basic training. VA has recognized transmission of hepatitis C through airgun injection is “biologically plausible.” See VBA Fast Letter 04-13 (June 29, 2004). According to a September 2015 VA clinical notation, however, the Veteran’s hepatitis is “likely secondary to [his] history of polysubstance abuse.” The Veteran has admitted to a history of polysubstance abuse for many years post-service. As the competent evidence of record suggests the Veteran’s hepatitis was initially incurred many years after service, service connection for this disability must be denied. The Veteran has himself alleged that he initially incurred hepatitis C during active duty service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau, 492 F.3d at 1372. While lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation, infectious diseases are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the Board finds the preponderance of the evidence to be against the award of service connection for hepatitis C, as such a disorder was not incurred in service or within a year thereafter, has not been chronic or continuous since service, and is not due to a disease or injury incurred therein. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 2. Entitlement to service connection for cirrhosis The Veteran seeks service connection for cirrhosis, as having been incurred in service or as due to or aggravated by a service-connected disability. Specifically, he asserts his hepatitis C, for which he also seeks service connection, has caused or aggravated his cirrhosis, and service connection on a secondary basis is therefore warranted. As an initial matter, the evidence does not suggest onset of cirrhosis during active duty service. The service treatment records are negative for any diagnosis of or treatment for cirrhosis or any other liver disability during service, and such a disability was not diagnosed until approximately 20007, more than 30 years after service. Additionally, no competent evidence has been presented establishing a nexus with service. Thus, service connection on a direct basis is not warranted. As discussed above, service connection for hepatitis C has been denied. Thus, any service connection claim as secondary to hepatitis must also be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Furthermore, the Veteran has not been granted service connection for any other disability. As such, the Board finds that the preponderance of the evidence is against the claim for service connection for cirrhosis on any basis, and the claim must be denied. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 3. Entitlement to service connection for diabetes The Veteran seeks service connection for diabetes mellitus. He asserts he developed such a disorder as the result of herbicide exposure during service. He alleges that he was initially deployed to Vietnam for one week due to a clerical error. Upon his arrival in Vietnam, this error was discovered and he was redeployed to Korea. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent (including Agent Orange), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f) (West 2014). “Service in the Republic of Vietnam” means actual service in country in Vietnam from January 9, 1962, to May 7, 1975, and includes service in the waters offshore or 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). For such veterans with confirmed Vietnam service, exposure to herbicides is presumed. See 38 C.F.R. § 3.309(e). If a veteran was exposed to an herbicide agent during service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was 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; chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes colitis or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease, multiple myeloma, non-Hodgkin’s lymphoma, acute and subacute peripheral neuropathy, porphyria cutaneous tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchitis, laryngitis or trachea) and soft tissue sarcomas, other than osteosarcoma, chondrosarcoma Kaposi’s sarcoma, or mesothelioma. 38 C.F.R. § 3.309(e). While ischemic heart disease is noted to be a presumptive disorder under 38 C.F.R. § 3.309(e), this term does not include hypertension. 38 C.F.R. § 3.309(e), Note 3. 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, or on any other recognized basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the present case, neither the Veteran’s Certificate of Release or Discharge from Active Duty, DD-214, nor the remainder of his service personnel records reflect service in Vietnam, and herbicide exposure therein cannot thus be presumed. As noted above, the Veteran asserts a clerical error resulted in him initially being deployed to Vietnam instead of Korea, and he spent a week in Vietnam awaiting new orders. While the Veteran’s service personnel records have been obtained and reviewed, these records reflect assignment to Korea, not Vietnam, and his attachment to units stationed in Korea. In the absence of any corroborating evidence, the Board cannot accept the Veteran’s contentions that he was in Vietnam at any time during his active duty service. The Veteran does have confirmed service in Korea from January 1969 to April 1970. VA recognizes that herbicide agents were used along the Demilitarized Zone (DMZ) in Korea between April 1, 1968, and August 31, 1971, and exposure to herbicides will be conceded if a veteran was assigned to a specified unit (as determined by VA and the Department of Defense (DoD)) who served in the DMZ region during that timeframe. 38 C.F.R. § 3.307 (a)(6)(iv). In the present case, however, the Veteran’s official unit, Battery E, 4th Battalion, 44th Artillery, is not one of the units determined by the DoD to have operated in the DMZ during this time period. In a case where a veteran is alleging herbicide exposure outside of those locations, the presumptive provisions do not apply and exposure must be determined on a case-by-case basis. See 38 C.F.R. § 3.309 (e). Such exposure to herbicides in Korea has not been confirmed in the present case. As noted above, the Veteran’s claimed Vietnam service has not been substantiated in the record, and herbicide exposure in Vietnam or at any other location is therefore not conceded by VA. In the absence of confirmed herbicide exposure, service connection on a presumptive basis for diabetes is not warranted. The Board must also, however, consider service connection on a direct basis. Considering next the service treatment records, the Veteran was not diagnosed with nor treated for diabetes during service, according to the available service treatment records. While a notation in the Veteran’s service treatment records confirm he was provided a service separation physical examination, a report of this separation examination is not of record. Nevertheless, based on the absence of treatment for diabetes both in service and for many years thereafter, the Board must conclude that such a disability was not incurred in service and has not been chronic and continuous since that time. More recently, VA treatment records confirm a current diagnosis of diabetes. He was first diagnosed with diabetes, by his own admission, in approximately 2006, more than 30 years after service separation. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In the absence of competent evidence of onset of diabetes either during service or within a year thereafter, service connection for such a disability must be denied. Competent evidence has also not been presented of a nexus between any in-service disease, injury, or other incident of service and a current diagnosis of diabetes. No medical expert or other competent party has suggested diabetes is etiologically-related to any service-related disease or injury, and in the absence of such evidence, service connection is not warranted. The Veteran has himself alleged that his diabetes is due to herbicide exposure or some other incident of service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau, 492 F.3d at 1372. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the Board finds the preponderance of the evidence to be against the award of service connection for diabetes, as such a disorder was not incurred in service or within a year thereafter, has not been chronic or continuous since service, and is not due to a disease or injury incurred therein. Additionally, as the Veteran does not have confirmed herbicide exposure, presumptive service connection is not warranted. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 4. Entitlement to service connection for hypertension The Veteran asserts he has hypertension which was incurred in or resulting from service, or due to a service-connected disability. Specifically, he asserts his diabetes mellitus, for which he also seeks service connection, has caused or aggravated his hypertension, and service connection on a secondary basis is therefore warranted. As an initial matter, the evidence does not suggest onset of hypertension during active duty service. The service treatment records are negative for any diagnosis of or treatment for hypertension, and such a disability was not diagnosed until approximately 2010, more than 30 years after service. Additionally, no competent evidence has been presented establishing a nexus with service. Thus, service connection on a direct basis is not warranted. As discussed in greater detail above, service connection for diabetes is not warranted. Thus, any service connection claim as secondary to diabetes must also be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Furthermore, the Veteran has not been granted service connection for any other disability. As such, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension on any basis, and the claim must be denied. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 5. Entitlement to service connection for neuropathy of the left upper extremity 6. Entitlement to service connection for neuropathy of the right upper extremity 7. Entitlement to service connection for neuropathy of the left lower extremity 8. Entitlement to service connection for neuropathy of the right lower extremity The Veteran asserts he has peripheral neuropathy of the upper and lower extremities which was incurred in or resulting from service, or due to a service-connected disability. Specifically, he asserts he was exposed to herbicides in service, resulting in peripheral neuropathy of all extremities. In the alternative, he also asserts his diabetes mellitus, for which he also seeks service connection, has caused or aggravated his peripheral neuropathy, and service connection on a secondary basis is therefore warranted. As an initial matter, the evidence does not suggest onset of peripheral neuropathy of any extremity during active duty service, or for many years thereafter. The service treatment records are negative for any diagnosis of or treatment for neuropathy or other neurological symptomatology, and such a disability was not diagnosed until approximately 2006, after the Veteran was diagnosed with diabetes and more than 30 years after service. Additionally, no competent evidence has been presented establishing a nexus with service. Thus, service connection on a direct basis is not warranted. As already discussed above, herbicide exposure has not been established in the present case, so service connection on that basis is also not warranted. Additionally, service connection for diabetes has been denied. Thus, any service connection claim as secondary to diabetes must also be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Furthermore, the Veteran has not been granted service connection for any other disability. As such, the Board finds that the preponderance of the evidence is against the claim for service connection for peripheral neuropathy of the upper and lower extremities on any basis, and the claim must be denied. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. The Veteran seeks service connection for a psychiatric disability, claimed as PTSD. He asserts that he has PTSD as the result of a fight with another soldier during service. In support of his claim, he submitted the February 2019 statement of D.Z., a fellow soldier who served with the Veteran in Korea. D.Z. wrote that he and the Veteran were involved in a physical altercation with another soldier while on a work detail. D.Z. could not remember if the Veteran sustained any injuries, however. The Veteran has also asserted that shortly after exiting a helicopter in Vietnam, it exploded, killing a sergeant and two pilots. While the death of service members is the type of event which can generally be verified within service records, the Veteran has not provided sufficient details to verify this incident. He should therefore be requested to provide any additional available details to allow verification of this event by VA. If sufficient details of this stressor event are subsequently provided by the Veteran, the agency of original jurisdiction must make additional efforts to verify the claimed stressor. As noted above, the Veteran’s altercation with another soldier has been verified by a third party. In adjudicating claims of service connection for PTSD, the sufficiency of a stressor is a medical determination, while the occurrence of the stressor is a legal determination. Sizemore v. Principi, 18 Vet. App. 264 (2004). Post-service VA treatment records indicate that various PTSD screenings afforded the Veteran have yielded both positive and negative results. Additionally, the Veteran has reported additional post-service stressors, including being shot and stabbed, and serving time in prison. As such, remand is necessary to determine if the Veteran does in fact have a current diagnosis of PTSD, and whether this disability is due to a verified in-service stressor. The matter is REMANDED for the following action: 1. Request the Veteran provide additional details regarding his in-service stressors, including the deaths of multiple service members in a helicopter explosion. If the Veteran provides sufficient details, contact the appropriate service department to verify his alleged stressor events. 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of any current psychiatric disability. The Veteran’s claims file must be made available to the examiner. After reviewing the claims file and conducting appropriate testing, the examiner is to provide an opinion as to the following: a) Is it at least as likely as not (a 50 percent or greater probability) the Veteran has a current diagnosis of PTSD or any other psychiatric disability? b) If a current psychiatric disability is confirmed, is it at least as likely as not this disability is due to a verified in-service stressor? The examiner must set forth a complete rationale for all findings and conclusions. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel