Citation Nr: 20021217 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-63 005 DATE: March 25, 2020 ORDER Service connection for anemia, to include as due to exposure to herbicide agents, is denied. FINDING OF FACT The Veteran’s anemia was not present in service or for years thereafter, and is not etiologically related to service, including herbicide exposure. CONCLUSION OF LAW The criteria to establish service connection for anemia, to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1970 to February 1972. This appeal comes to the Board of Veterans’ Appeals (Board) from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in January 2020 before the undersigned Veterans Law Judge; a transcript of the hearing is of record. Service Connection for Anemia—Laws and Analysis 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; 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); 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 all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran contends that he has currently diagnosed anemia, related to his active military service. The Veteran served in Vietnam during the Vietnam; therefore, his exposure to herbicide agents therein is presumed. 38 C.F.R. § 3.307 (a)(6)(iii). However, VA regulations do not provide for presumptive service connection, based on Agent Orange exposure, for anemia. See 38 C.F.R. § 3.309 (e). Thus, a presumption of herbicide exposure based upon herbicide exposure in Vietnam is not warranted for anemia. 38 C.F.R. §§ 3.307 (a)(6). The Board next considers service connection on a direct basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records do not show a diagnosis, treatment or complaints related to anemia during active duty or at discharge. Further, the Veteran was not diagnosed with anemia until decades after service. See VA treatment records (noting an onset date for microcytic hypochromic anemia in 2015). There is no competent evidence to establish that it is due to any event or incident of the Veteran’s period of active duty. The post-service treatment records do not indicate that the Veteran’s anemia is related to his active military service, and there is no evidence otherwise linking the current disability to service, including herbicide exposure. The Veteran submitted a medical article in September 2015; however, this article does not address the etiology of anemia and does not indicate any relationship between the Veteran’s anemia and exposure to herbicide agents. The Board acknowledges that there is no VA medical examination or opinion of record addressing whether the Veteran’s currently diagnosed anemia is directly related to his active military service. However, the Veteran has not reported a continuity of symptomatology beginning in service, and there is no probative medical evidence, VA or private, indicating that his anemia may be related to service, to include exposure to herbicide agents. Furthermore, as noted above, VA outpatient treatment records show an onset date of 2015, many years after his discharge. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of anemia or iron deficiency, the Board notes that this passage of time weighs significantly against a finding of direct service connection for anemia. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran’s assertion that his anemia is due to herbicide agent exposure in service. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed anemia and his active service. Such an opinion would require medical expertise as it would require clinical testing and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his anemia. 38 C.F.R. § 3.159 (a)(1), (2). For the reasons and basis stated above, the Board finds that service connection for anemia on a direct or presumptive basis is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is the against the claim, that doctrine is not applicable. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.