Citation Nr: 20008034 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 14-18 727A DATE: January 30, 2020 ORDER Entitlement to service connection for diabetes mellitus, claimed as secondary to in-service herbicide exposure, is denied. Entitlement to service connection for non-Hodgkin’s lymphoma, claimed as secondary to in-service herbicide exposure, is denied. Entitlement to service connection for hypertension, claimed as secondary to in-service herbicide exposure, is denied. FINDINGS OF FACT 1. The evidence of record is against finding that the Veteran’s diabetes mellitus was caused by herbicide exposure during active service or was otherwise related to an in-service injury, event, or disease. 2. The evidence of record is against finding that the Veteran’s non-Hodgkin’s lymphoma was caused by herbicide exposure during active service or was otherwise related to an in-service injury, event, or disease. 3. The evidence of record is against finding that the Veteran’s hypertension was caused by herbicide exposure during active service or was otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, claimed as secondary to in-service herbicide exposure, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6)(iv), 3.309(e). 2. The criteria for service connection for non-Hodgkin’s lymphoma, claimed as secondary to in-service herbicide exposure, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6)(iv), 3.309(e). 3. The criteria for service connection for hypertension, claimed as secondary to in-service herbicide exposure, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6)(iv), 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1967 to September 1970. This case is on appeal before the Board of Veterans’ Appeals (Board) from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In August 2015, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file.   These matters were previously before the Board in October 2015, at which time it rendered a decision remanding the issues on appeal for further development. Specifically, the Board ordered the RO to acquire all available unit records from the 304th Signal Battalion, Company C, from April 1968 to May 1969. The required development has now been completed. Stegall v. West, 11 Vet. App. 268 (1998). As such, these matters now return to the Board for final adjudication. A review of the record reflects additional medical evidence was added subsequent to the May 2016 Supplemental Statement of the Case (SSOC). However, since the Veteran waived RO consideration of this material, no further action is required. The Veteran died on February [REDACTED], 2018, while this appeal was pending. Generally, claims do not survive a claimant’s death as a matter of law. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996). As such, the Board dismissed the Veteran’s appeal in a July 2018 determination. However, the Veteran’s surviving wife has been identified as a person eligible to receive accrued benefits. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a). Thus, her request for substitution for the purposes of processing the Veteran’s appeal to completion was granted by the VA in July 2018. Hence, she will be referred to as the Appellant. Neither the Appellant nor her representative has raised any specific issues with the duty to notify or the 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.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, neither the Appellant nor her representative has raised any issues concerning the hearing held before the undersigned. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).   The Appellant seeks service connection for the Veteran’s diabetes mellitus, non-Hodgkin’s lymphoma, and hypertension. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”).   When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). I. Herbicide Exposure The Appellant seeks service connection for the Veteran’s diabetes mellitus, non-Hodgkin’s lymphoma, and hypertension. The Veteran alleged that these conditions were caused by his exposure to herbicide agents during his tour of duty in Korea. See June 2019 appellate brief. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). VA laws and regulations provide that, if a veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Moreover, a veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit, that as determined by the Department of Defense, operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309(e) are applicable. The Department of Defense has confirmed that the herbicide Agent Orange was used from April 1968 through July 1969 along the Korean DMZ to defoliate the fields of fire between the frontline defensive positions and the south barrier fence. VA Adjudication Procedure Manual, MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C. The treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line. Under the development instructions, if it is determined that a Veteran who served in Korea during the time period belonged to one of the units identified by Department of Defense, then it was presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) would apply. Id. If the Veteran served in a different unit located in Korea during this time period, the unit’s location must be verified. The evidence of record establishes that, prior to his death, the Veteran was diagnosed with diabetes mellitus (type II), non-Hodgkin’s lymphoma, and hypertension. However, the Board points out that presumptive service connection under 38 C.F.R. § 3.309(e) is only permitted for diabetes mellitus (type II) and non-Hodgkin’s lymphoma. Although this provision also allows presumptive service connection for ischemic heart disease, Note (2) specifically states that ischemic heart disease does not encompass hypertension. Nonetheless, the Appellant could establish service connection for diabetes mellitus and non-Hodgkin’s lymphoma simply by showing that the Veteran was exposed to herbicide agents during his period of active duty. The Veteran testified that he was trained as a cryptographer and was attached to a “crypto van” while stationed in Korea. These duties required him to go all over the country, from Busan to the DMZ. He also stated that Agent Orange was sprayed wherever the van was set up. Indeed, he claimed that he saw people with drums spraying around the vans; he indicated that he was later told that Agent Orange was inside the drums. Moreover, the Veteran asserted that he was sent to the DMZ to set up communications after the North Koreans abducted sailors and marines from the USS Pueblo (January to December 1968). Lastly, the Veteran alleged that he was sent to guard missile sites along the DMZ due to his top-secret security clearance. He stated that he saw planes spraying Agent Orange during these assignments. See August 2011 statement; see also August 2015 Board hearing. The Veteran’s service personnel records confirm that his military occupational specialty was cartographer and communications specialist. He also had a secret security clearance. Finally, these records establish that the Veteran served in Korea between April 1968 and May 1969, which is within the timeframe specified in 38 C.F.R. § 3.307(a)(6)(iv). While there, he was assigned to the 304th Signal Battalion, Company C. However, this unit has not been identified by the Department of Defense as having conducted operations in the DMZ during the qualifying period. Rather, a December 2012 response from the Defense Personnel Records Information Retrieval System reveals no indication that any member of the 304th Signal Battalion, Companies B and C, performed duties in or along the DMZ during the relevant timeframe. Accordingly, there is no evidence to corroborate the Veteran’s claims of being in or along the DMZ within the qualifying period. Moreover, there is no documentation of herbicide use outside the region specified in the VA Adjudication Procedure Manual, MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C. Thus, the Board determines that service connection for diabetes mellitus and non-Hodgkin’s lymphoma is not warranted on a presumptive basis under 38 C.F.R. § 3.307(a)(6)(iv). Nonetheless, the failure to meet the criteria for a presumptive provision does not preclude the Appellant 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); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). Thus, the Appellant could still prevail by showing that the Veteran’s diabetes mellitus, non-Hodgkin’s lymphoma, and hypertension were otherwise related to service. II. Diabetes Mellitus The Appellant seeks service connection for diabetes mellitus, which she traces to herbicide exposure during the Veteran’s period of active duty. See June 2019 appellate brief. However, as explained in the first section, there is no evidence that the Veteran was ever exposed to herbicides while he was stationed in Korea. As such, this claim will be analyzed as a direct service connection issue. The Veteran’s service treatment records are absent for any indication of diabetes mellitus. Indeed, his April 1970 separation examination does not mention a diagnosis at the time of discharge. The first references to diabetes mellitus do not appear until many years after separation. A private treatment record from November 2009 reflects an existing diagnosis of diabetes mellitus. A January 2014 letter from Dr. J.G., the Veteran’s private primary care physician, reiterated his diagnosis of diabetes mellitus, type II. Dr. J.G. also opined that this condition was linked to Agent Orange exposure during the Veteran’s time in the military. Private and VA medical records in the years leading up to the Veteran’s death reflect ongoing treatment and medication usage related to diabetes mellitus. However, apart from Dr. J.G., none of the Veteran’s treating physicians have ever issued an opinion linking this disability to events in service. After careful consideration of the claims file, the Board determines that the preponderance of the evidence of record is against finding that the Veteran’s diabetes mellitus was related to his military service. The Veteran’s service treatment records are absent for any indication of diabetes mellitus. Although Dr. J.G. opined that the Veteran’s diabetes mellitus was related to Agent Orange exposure, there is no evidence to show that he ever came into contact with herbicide agents during his time in Korea. The Board therefore finds that the conclusion offered by Dr. J.G. rests upon an inaccurate factual premise. As such, his January 2014 letter is entitled to little evidentiary weight. The Board also points out that neither the Veteran nor the Appellant have alleged any theory of causation apart from herbicide exposure to explain the origin of his diabetes mellitus. Nonetheless, even if they had, lay witnesses are only competent to provide evidence regarding matters that can be perceived by the senses. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). Therefore, neither the Veteran nor his wife would be competent to offer an opinion regarding the etiology of a complex medical condition like diabetes mellitus. The Appellant bears the evidentiary burden to establish all elements of a service connection claim. Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). Given the absence of evidence to show that the Veteran was exposed to herbicide agents during his time in the military, as well as the lack of competent medical opinion evidence to establish a link between his disability and active service, the Board finds that the Appellant has not substantiated her claim for service connection for diabetes mellitus. Hickson, 12 Vet. App. at 253. Moreover, because there is no indication that the Veteran’s diabetes mellitus may have been related to an in-service injury, event, or disease, the Board concludes that a VA opinion is not warranted for this issue. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). For the reasons set forth above, the Board concludes that the evidence of record is against finding that the Veteran’s diabetes mellitus was related to events in service, to include exposure to herbicide agents. Although the Board acknowledges the lay statements to the contrary, there is no competent or credible evidence currently associated with the claims file to corroborate these assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 58. Accordingly, the Appellant’s claim for service connection for diabetes mellitus is denied. III. Non-Hodgkin’s Lymphoma The Appellant seeks service connection for non-Hodgkin’s lymphoma, which she traces to herbicide exposure during the Veteran’s period of active duty. See June 2019 appellate brief. However, as explained in the first section, there is no evidence that the Veteran was ever exposed to herbicides while he was stationed in Korea. As such, this claim will be analyzed as a direct service connection issue. The Veteran’s service treatment records are absent for any indication of non-Hodgkin’s lymphoma. Indeed, his April 1970 separation examination does not mention any diagnosis of cancer at the time of discharge. The first references to cancer do not appear until many years after separation. A private treatment record from June 2010 indicates that the Veteran was diagnosed with non-Hodgkin’s lymphoma that month. He later underwent both chemotherapy and numerous surgeries to remove the cancerous growths. A January 2014 letter from Dr. J.G., the Veteran’s private primary care physician, reiterated his diagnosis of non-Hodgkin’s lymphoma. Dr. J.G. also opined that this condition was linked to Agent Orange exposure during the Veteran’s time in the military. Later in January 2014, Dr. R.S., the Veteran’s private oncologist, stated that his non-Hodgkin’s lymphoma was “possibly” caused by Agent Orange exposure. However, Dr. R.S. stated this was a determination for the military to make. Private and VA medical records in the years leading up to the Veteran’s death reflect ongoing treatment and medication usage related to non-Hodgkin’s lymphoma. However, apart from Dr. J.G. and Dr. R.S., none of the Veteran’s treating physicians have ever issued an opinion linking this disability to events in service. After careful consideration of the claims file, the Board determines that the preponderance of the evidence of record is against finding that the Veteran’s non-Hodgkin’s lymphoma was related to his military service. The Veteran’s service treatment records are absent for any indication of cancer. Although Dr. J.G. and Dr. R.S. both indicated that the Veteran’s non-Hodgkin’s lymphoma could have been related to Agent Orange exposure, there is no evidence to show that he ever came into contact with herbicide agents during his time in Korea. The Board therefore finds that the conclusions offered by Dr. J.G. and Dr. R.S. rest upon an inaccurate factual premise. As such, their opinions are entitled to little evidentiary weight. The Board also points out that neither the Veteran nor the Appellant have alleged any theory of causation apart from herbicide exposure to explain the origin of his non-Hodgkin’s lymphoma. Nonetheless, even if they had, lay witnesses are only competent to provide evidence regarding matters that can be perceived by the senses. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). Therefore, neither the Veteran nor his wife would be competent to offer an opinion regarding the etiology of a complex medical condition like non-Hodgkin’s lymphoma. The Appellant bears the evidentiary burden to establish all elements of a service connection claim. Fagan, 573 F.3d at 1287-88. Given the absence of evidence to show that the Veteran was exposed to herbicide agents during his time in the military, as well as the lack of competent medical opinion evidence to establish a link between his cancer and active service, the Board finds that the Appellant has not substantiated her claim for service connection for non-Hodgkin’s lymphoma. Hickson, 12 Vet. App. at 253. Moreover, because there is no indication that the Veteran’s non-Hodgkin’s lymphoma may have been related to an in-service injury, event, or disease, the Board concludes that a VA opinion is not warranted for this issue. McLendon, 20 Vet. App. at 83; Waters, 601 F.3d at 1278-79. For the reasons set forth above, the Board concludes that the evidence of record is against finding that the Veteran’s non-Hodgkin’s lymphoma was related to events in service, to include exposure to herbicide agents. Although the Board acknowledges the lay statements to the contrary, there is no competent or credible evidence currently associated with the claims file to corroborate these assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 58. Accordingly, the Appellant’s claim for service connection for non-Hodgkin’s lymphoma is denied. IV. Hypertension The Appellant seeks service connection for hypertension, which she traces to herbicide exposure during the Veteran’s period of active duty. See June 2019 appellate brief. However, as explained in the first section, there is no evidence that the Veteran was ever exposed to herbicides while he was stationed in Korea. As such, this claim will be analyzed as a direct service connection issue. VA regulations differentiate between hypertension and isolated systolic hypertension. Hypertension means that the diastolic blood pressure is predominantly 90 millimeters or greater, while isolated systolic hypertension means that the systolic blood pressure is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. C.F.R. § 4.104, Diagnostic Code 7101. Under Note (1), hypertension must be confirmed by readings taken on two or more times on at least three different days. The Veteran’s service treatment records are absent for any indication of hypertension. His September 1967 separation examination reflects a blood pressure reading of 116/74. During his April 1970 separation, the Veteran’s blood pressure was measured at 110/70. To the extent these readings may reflect isolated instances of elevated blood pressure, there is no evidence that the Veteran was diagnosed with, or suspected to have, hypertension during active duty. The first references to hypertension do not appear until many years after separation. A private treatment record from November 2009 reflects an existing diagnosis of hypertension. A VA treatment record from June 2011 contains a blood pressure reading of 150/84. The following month, the Veteran’s blood pressure was measured at 120/72. A January 2014 letter from Dr. J.G., the Veteran’s private primary care physician, reiterated his diagnosis of hypertension. Dr. J.G. also opined that this condition was linked to Agent Orange exposure during the Veteran’s time in the military. Private and VA medical records in the years leading up to the Veteran’s death reflect ongoing treatment and medication usage related to hypertension. A VA treatment record from July 2015 includes a blood pressure reading of 116/68. However, apart from Dr. J.G., none of the Veteran’s treating physicians have ever issued an opinion linking this disability to events in service. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran had hypertension that was related to his military service. The Veteran’s service treatment records are absent for any indication of hypertension or elevated blood pressure. The Board acknowledges the statement from Dr. J.G., who opined that the Veteran’s claimed hypertension was related to Agent Orange exposure. Nonetheless, as explained in the first section, there is no evidence to show that the Veteran ever came into contact with herbicide agents during his time in Korea. Therefore, the conclusion offered by Dr. J.G. would still rest upon an inaccurate factual premise. As such, his January 2014 letter is entitled to little evidentiary weight. The Board also points out that neither the Veteran nor the Appellant have alleged any theory of causation apart from herbicide exposure to explain the origin of his hypertension. Nonetheless, even if they had, lay witnesses are only competent to provide evidence regarding matters that can be perceived by the senses. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). Therefore, neither the Veteran nor his wife would be competent to offer an opinion regarding the etiology of a complex medical condition like hypertension. The Appellant bears the evidentiary burden to establish all elements of a service connection claim. Fagan, 573 F.3d at 1287-88. Given the absence of evidence to show that the Veteran was exposed to herbicide agents during his time in the military, as well as the lack of competent medical opinion evidence to establish a link between his hypertension and active service, the Board finds that the Appellant has not substantiated her claim for service connection. Hickson, 12 Vet. App. at 253. Moreover, because there is no indication that the Veteran’s hypertension may have been related to an in-service injury, event, or disease, the Board concludes that a VA opinion is not warranted for this issue. McLendon, 20 Vet. App. at 83; Waters, 601 F.3d at 1278-79. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals MJS, Attorney for the Board Department of Veterans Affairs 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.