Citation Nr: 19157818 Decision Date: 07/25/19 Archive Date: 07/25/19 DOCKET NO. 15-02 985 DATE: July 25, 2019 ORDER Entitlement to service connection for diabetes mellitus, to include as due to exposure to Agent Orange is granted. Entitlement to service connection for a bilateral knee disorder is denied. Entitlement to service connection for a bilateral hip disorder is denied. Entitlement to service connection for a heart disorder, other than hypertension is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a skin disorder of the toes is denied. Entitlement to service connection for a respiratory disorder, claimed as asthma, is denied. FINDINGS OF FACT 1. The Veteran traveled the in-land waterways while stationed aboard the USS Pickering and, as such, is presumed to have been exposed to Agent Orange during service. 2. The Veteran has been diagnosed with diabetes mellitus. 3. The preponderance of the evidence is against finding that the Veteran has a bilateral knee disorder that is due to a disease or injury in service, to include a specific in-service event, injury, or disease. 4. The preponderance of the evidence is against finding that the Veteran has a bilateral hip disorder that is due to a disease or injury in service, to include a specific in-service event, injury, or disease. 5. The preponderance of the evidence is against finding that the Veteran has a heart disorder, other than hypertension, that is due to a disease or injury in service, to include a specific in-service event, injury, or disease. 6. The preponderance of the evidence is against finding that the Veteran has hypertension that is due to a disease or injury in service, to include a specific in-service event, injury, or disease. 7. The preponderance of the evidence is against finding that the Veteran has a skin disorder of the toes that is due to a disease or injury in service, to include a specific in-service event, injury, or disease. 8. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a respiratory disorder, to include asthma. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for service connection for a bilateral knee disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. 3. The criteria for service connection for a bilateral hip disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. 4. The criteria for service connection for a heart disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. 5. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. 6. The criteria for service connection for a skin disorder on the toes are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to March 1967. In October 2018, the Veteran presented testimony before the undersigned Veterans Law Judge of the Board during a Central Office hearing. A copy of the transcript has been associated with the claims file. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). The law also provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). Section 3.307(d)(6) provides that the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307 (d)(6)(i). Section 3.307(d)(6) also provides that 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. 38 C.F.R. § 3.307 (d)(6)(iii). 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. However, this presumption does not apply to veterans who served exclusively offshore in ocean-going ships, i.e., the “blue water” Navy. See 38 C.F.R. § 3.313(a); VAOPGCPREC 27-97 (Mere service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam do not constitute “[s]ervice in the Republic of Vietnam” for purposes of 38 U.S.C. § 101 (29)(A)); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA’s statutory interpretation excluding the “blue water” Navy from presumptive herbicide exposure). In February 2016, in response to a decision by the United States Court of Appeals for Veterans Claims (Court) in Gray v. McDonald, 27 Vet. App. 313 (2015), VA released updated guidance about which bodies of water in Vietnam constitute inland waterways and thus which Naval service members are appropriately in receipt of the presumption of exposure to herbicides as a result of service in Vietnam. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin’s disease, 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), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). However, for purposes of presumptive service connection due to herbicide exposure, 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 (codified at 38 C.F.R. pt. 4); 75 Fed. Reg. 53, 202-53, 205 (August 31, 2010). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not been specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to herbicide exposure, but must also determine whether the disability was otherwise the result of active service. 38C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Here, the Board finds that the evidence shows the Veteran was exposed to Agent Orange during his military service. In this respect, the Veteran’s service personnel records confirm he served aboard the USS Pickering during a time when the ship was stationed in the in-land waters during the Vietnam War. See January 2018 VA Memorandum. Therefore, exposure to Agent Orange is conceded. Further, the only disease for which exposure to Agent Orange is warranted on a presumptive basis is diabetes mellitus, which is addressed in further detail below. In this respect, the Board notes that the Veteran has not been diagnosed with ischemic heart disease and, instead, has only been diagnosed with non-ischemic heart disorders. Therefore, even though VA has conceded the Veteran’s exposure to Agent Orange, he is not entitled to presumptive service connection for any of the claimed disorders other than diabetes mellitus. Additionally, for veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis and hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 38 C.F.R. 3.307(a), 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. 3.309 (a)). In the present case, however, the record does not establish that the Veteran was diagnosed with either arthritis of the knees and hips, or hypertension within one year of service. In fact, the first indication of arthritis and hypertension was not noted until September 1996 in a private treatment record. While this record does not specify the location of the diagnosed arthritis, the Board will afford the Veteran the benefit of the doubt and assume it is in reference to the later noted osteoarthritis of the hips and knees. Nevertheless, as these disorders were not diagnosed until approximately 29 years following the Veteran’s separation from service, entitlement to presumptive service connection is not warranted. However, as here, the failure to meet the criteria for presumptive service connection for at least some of the claimed disorders does not preclude a Veteran from establishing entitlement to service connection on a different basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, aside from the diabetes mellitus, the Veteran’s remaining theories of entitlement to service connection are based on direct service connection. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Finally, the Board notes that the Veteran has not been afforded VA examinations addressing his claims, but the Board finds that examinations are not required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary’s obligation under 38 U.S.C. § 5103A (d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With respect to the Veteran’s claim of entitlement to service connection for a respiratory disorder, the evidence does not indicate that the Veteran has been diagnosed with such a disability at any time. Instead, the only suggestion that the Veteran may have a respiratory disorder are the Veteran’s own statements. The Veteran’s medical records otherwise consistently fail to demonstrate the presence of a respiratory disorder. These facts are insufficient to trigger VA’s duty to provide an examination with an opinion. Without competent evidence indicating that the Veteran has indeed been diagnosed with a respiratory disorder, a VA examination addressing this claim is unwarranted. See Waters, 601 F.3d 1274. Regarding the claims of service connection for bilateral knee disorder, bilateral hip disorder, and a skin disorder, the evidence does not indicate the claimed disorders are due to or aggravated by the Veteran’s military service. Again, the only suggestion that these disorders are due to his military service are the Veteran’s own statements. The Veteran has not offered any medical records to suggest otherwise. These facts are insufficient to trigger VA’s duty to provide examinations. See Waters, 601 F.3d 1274. 1. Diabetes mellitus The Veteran is seeking entitlement to service connection for diabetes mellitus as due to his exposure to Agent Orange during the Vietnam War. Here, the record reflects the Veteran has been diagnosed with diabetes mellitus. See January 2018 VA Examination. As diabetes mellitus is included in the list of diseases presumptively associated with herbicide exposure and the Veteran’s exposure to Agent Orange has been conceded, service connection is granted. 2. Hypertension, heart disorder, bilateral knee disorder, bilateral hip disorder, skin disorder of the toes The Veteran is seeking service connection for hypertension, a heart disorder (other than hypertension), bilateral knee and bilateral hip disorders, as well as a skin disorder of the toes that he believes are due to his military service. The question for the Board is whether the Veteran’s claimed disorders began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board notes the Veteran has current diagnoses of hypertension (see January 2019 VA examination); non-ischemic heart disease, diagnosed as congestive heart failure and cardiomyopathy (see January 2018 VA examination); arthritis of the knees and hips (see February 2018 VA Problem List); and, onychomycosis of the toes (see August 2017 VA Treatment Record). Nevertheless, the preponderance of the evidence weighs against finding that any of these claimed disorders began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this respect, the Veteran’s service treatment records are completely silent regarding any complaints, treatment, or diagnoses for hypertension, a heart disorder, knee and hip problems, or skin disorders. Further, despite the existence of the VA and private treatment records associated with the claims file that note the current diagnoses of these claimed disorders and associated treatment, these records do not contain any etiological opinions attributing the disorders to the Veteran’s military service. Concerning specifically the claim for service connection for hypertension, the January 2018 VA examiner determined that it is less likely than not that the Veteran’s diagnosed hypertension is due to his military service. The examiner considered the lack of elevated blood pressure readings in service and for many years after separation. The examiner also noted there was no chronicity of care to otherwise attribute the Veteran’s hypertension to his military service. In reaching the above conclusion, the VA examiner reviewed the claims file and performed an in-person examination of the Veteran. Similarly, in the January 2018 VA examination pertaining to heart disorders other than hypertension, the VA examiner determined the diagnosed congestive heart failure and cardiomyopathy are less likely than not due to the Veteran’s military service. The examiner considered the lack of any heart related disorders during and for many years after separation. The examiner also indicated there was insufficient evidence of coronary artery disease. In reaching these conclusions, the VA examiner reviewed the claims file and performed an in-person examination of the Veteran. Thus, there is simply no evidence of record, aside from the Veteran’s unsubstantiated lay statements submitted during the course of his appeal, to include during his October 2018 Central Office hearing, that his diagnosed hypertension, non-ischemic heart disorders of congestive heart failure and cardiomyopathy, onychomycosis of the toes, and arthritis of the knees and hips are due to his military service. While the Veteran believes his disorders are related to an in-service injury, event, or disease, he is not competent to provide nexus opinions in this case, as the issues of causation in this case requires knowledge and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, service connection is not warranted because the Veteran has not satisfied the nexus requirement of attributing these disorders to his active service. See 38 C.F.R. § 3.303. In reaching the above conclusions, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine does not apply. 38 U.S.C. § 5107 (b). The claims of entitlement to service connection for are denied. 3. Asthma The question for the Board is whether the Veteran has a current respiratory disorder that began during service or are at least as likely as not related to an in-service injury, event, or disease. For the reasons discussed below, the Board concludes that the Veteran does not have a current diagnosis of a respiratory disorder, to include asthma, and has not had diagnoses at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s available service treatment records are completely silent regarding any complaints, treatment, or diagnoses of a respiratory disorder during service. Since his separation from service in 1967, the available VA and private treatment records also fail to note any complaints of or diagnoses for a respiratory disorder. While the Veteran believes he currently suffers from a respiratory disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex and require specialized medical education, as well as the ability to interpret complicated diagnostic medical testing, in order to render a diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In sum, the Veteran’s claim fails to meet the first prong of service connection, which is the requirement of a current disability. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b). As such, the claim must be denied. (Continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, 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.