Citation Nr: 20021797 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-08 666 DATE: March 27, 2020 ORDER Entitlement to service connection for ischemic heart disease is granted. Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for chronic renal disease is remanded. FINDINGS OF FACT 1. The Veteran has current diagnoses of ischemic heart disease and prostate cancer; and it is presumed by law that these disabilities are related to herbicide agent exposure stemming from the Veteran’s service aboard the USS Worden in November 1968, when it traveled in the territorial sea of the Republic of Vietnam. 2. The Veteran has not carried a diagnosis of diabetes mellitus within the appellate period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). 2. The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; Procopio, supra. 3. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to September 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the February 2016 VA form 9, Substantive Appeal, the Veteran declined an optional Board hearing. As to the matters adjudicated below, neither the Veteran nor his representative has raised any issues with VA’s duty to notify or VA’s 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). Thus, the Board need not discuss any potential issues in this regard. Service Connection 1. Entitlement to service connection for ischemic heart disease and prostate cancer is granted. The Veteran claims entitlement to service connection for ischemic heart disease and prostate cancer under applicable regulatory presumptions based on in-service exposure to herbicide agents. He primarily contends that he was exposed to herbicide agents during his verified November 1968 service aboard the USS Worden, when it traveled to Da Nang Harbor, near the coast of the Republic of Vietnam. Under 38 U.S.C. § 1116, a veteran who “served in the Republic of Vietnam” during the period beginning on January 9, 1962 and ending on May 7, 1975 shall be considered exposed to an herbicide agent, and that exposure in turn will be presumed to be the cause of certain enumerated diseases. See 38 C.F.R. § 3.309(e), (listing ischemic heart disease and prostate cancer among diseases presumptively associated with exposure to certain herbicide agents). In January 2019, while this appeal was awaiting final Board consideration, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the phrase “in the Republic of Vietnam” included the 12 nautical mile territorial sea of Vietnam. Procopio, supra. On March 21, 2019, the Federal Circuit denied the Secretary’s motion to stay the entry of mandate and mandate was issued on March 22, 2019. Shortly thereafter, on March 29, 2019, VA’s Principal Deputy General Counsel issued an advisory opinion providing non-precedential guidance to the Board for the adjudication of such appeals. VAOPGCADVIS 1-19, “Issues Relating to Implementation of Procopio v. Wilkie.” The advisory opinion held, in pertinent part, “[I]f the file contains sufficient evidence for such a determination [whether the veteran served within the 12 nautical mile territorial sea of Vietnam], the Board should decide the case.” Id. at 1. It further explained: [S]ome cases may be capable of immediate decision. For example, if the record contains persuasive evidence that a given veteran entered a bay or harbor recognized as within Vietnam’s territorial sea, or if the record contains a deck log establishing that the ship went within 12 miles of the mainland while the veteran was serving on board, this evidence would support the conclusion that the veteran entered the territorial sea of Vietnam. Id. at 3-4, ¶ 6. Following the finality of the Procopio decision, on June 25, 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019, which extended the presumption of exposure to herbicide agents to those veterans who served offshore and within 12 nautical miles of the coast of the Republic of Vietnam between January 9, 1962 and May 7, 1975. See Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019) (codified at 38 U.S.C. § 1116A). As a result of these new legal authorities, the presumption of exposure to herbicide agents now extends to veterans who served offshore and within 12 nautical miles off the coast of the Republic of Vietnam, and such veterans are entitled to presumptive service connection under 38 U.S.C. §§ 1116 and 1116A, so long as all applicable legal requirements are satisfied. After a full review of the record, and resolving reasonable doubt in the Veteran’s favor, entitlement to service connection for ischemic heart disease and prostate cancer is granted on a presumptive basis. The record clearly demonstrates that the Veteran has been diagnosed with ischemic heart disease and prostate cancer within the appellate period. See 07/06/2011 Disability Benefits Questionnaire (DBQ) (confirming a diagnosis of “acute, subacute, or old myocardial infarction” and “hypertensive heart disease”); see 02/28/2013 private treatment records (diagnosis of coronary artery disease); see 10/27/2014 DBQ and 07/13/2015 VA examination (confirming a diagnosis of prostate cancer). Additionally, the evidence is at least in equipoise that in November 1968, the Veteran served aboard the USS Worden, which was anchored in Da Nang Harbor, and which traveled in the territorial sea of the Republic of Vietnam, within 12 nautical miles off the coast of the Republic of Vietnam. The Veteran’s military personnel records establish that he was aboard the USS Worden from January 1967 to May 1969. A notification received from the Defense Personnel Records Information Retrieval System (DPRIS) in March 2015 confirmed that a review of the command history and deck logs for the USS Worden showed that it was anchored in Da Nang Harbor on November 27, 1968. As referenced by the Veteran, VA’s publication of “Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents,” last updated 10/28/2019, also confirms that the USS Worden sent a whaleboat ashore for briefing while in Da Nang Harbor on November 27, 1968. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, available at https://vbaw.vba.va.gov/bl/21/rating/docs/Shipslist-Agent-Orange.pdf, p. 32 (last accessed 03/13/2020). While the Veteran hs not alleged that he went ashore in a whaleboat, this evidence nevertheless confirms that the USS Worden was anchored in the Da Nang Harbor during a time period when the Veteran served aboard the navy vessel. In conclusion, the Board finds that the Veteran served during a relevant time period “offshore of the Republic of Vietnam” as used in 38 U.S.C. § 1116A. The evidence sufficiently establishes that he was aboard the USS Worden when it was anchored in Da Nang Harbor in November 1968, within 12 nautical miles off the coast of the Republic of Vietnam. It is a matter of general knowledge that Da Nang Harbor is a little over 4 miles wide and surrounded on three sides by the landmass of the Republic of Vietnam. Therefore, the Veteran was presumptively exposed to herbicide agents during such service aboard the USS Worden. As he undisputedly has a current diagnosis of ischemic heart disease and prostate cancer, disabilities which are presumptively linked to such herbicide agent exposure, a nexus opinion is unnecessary. 38 C.F.R. §§ 3.307, 3.309. Accordingly, entitlement to service connection for ischemic heart disease and prostate cancer is granted on a presumptive basis. 2. Entitlement to service connection for diabetes mellitus is denied. The Veteran seeks entitlement to service connection for diabetes mellitus, which he alleges is the result of herbicide agent exposure during his verified November 1968 service aboard the USS Worden, when it traveled to Da Nang Harbor, within 12 nautical miles off the coast of the Republic of Vietnam. Generally, to establish service connection, a veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. Additionally, service connection may also be achieved if any applicable presumptive service connection regulations apply to the Veteran’s circumstances or when a claimed disability is shown to be proximately due to, the result of, or aggravated by a service-connected disability. Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997) (holding that section 1131 requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998) (applying Degmetich to section 1110); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (recent diagnoses predating filing of claim are relevant evidence in determining whether a current disability existed at time claim was filed or during its pendency). In the present matter, the Board has fully reviewed the electronic claims file, but finds no competent evidence establishing that the Veteran has been diagnosed with diabetes mellitus within the appellate period. In January 2015, the Veteran submitted a DBQ completed by a private physician which indicated that the Veteran experienced impaired fasting glucose, but the physician did not diagnose the Veteran with diabetes mellitus. The Veteran has also submitted several blood test results showing elevated serum glucose. The Veteran was afforded a VA examination in July 2015 to assess his claims regarding diabetes mellitus. Following a complete review of relevant documents, the VA examiner confirmed that the Veteran did not have an official diagnosis of diabetes mellitus and stated that the Veteran’s HbA1C was within normal range. In the August 2015 Notice of Disagreement, the Veteran argued that impaired fasting glucose was a recognized method of determining diabetes, aside from HbA1C. The Veteran is not competent to opine on the clinical requirements for the diagnosis of diabetes mellitus as he lacks the requisite medical training and expertise necessary to opine on complex medical matters such as the diagnosis or etiology of a medical condition. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Veteran’s lay statements are not probative and are entitled to no evidentiary weight in this determination. The Board acknowledges that private treatment records dated in July 2011 list “noninsulin dependent diabetes” in the past medical history section. It appears that the physician was merely recording the Veteran’s lay reports regarding a history of diabetes, as there is no indication that the physician was familiar with the Veteran’s complete medical history, which is negative for a clinical diagnosis of diabetes mellitus. The Board notes that the mere recitation of the Veteran’s self-reported lay history does not constitute competent medical evidence of diagnosis or causality. LeShore v. Brown, 8 Vet. App. 406 (1995) (a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional). Thus, the Board affords the private July 2011 treatment notes no evidentiary weight in this determination. The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. However, there is no indication that the Veteran’s impaired fasting glucose has resulted in functional impairment of earning capacity for the Veteran. In this regard, for example, the July 2015 VA examination report reflected no functional impact from the Veteran’s claimed disability. Based on the foregoing, the Board finds that Veteran has not carried a current diagnosis of diabetes mellitus during the pendency of the claim. In this regard, all objective laboratory findings, which are required for a diagnosis of diabetes mellitus, have been in the pre-diabetic range and indicative of impaired fasting glucose. Notably, impaired fasting glucose is merely a clinical finding, not a recognized disability for VA compensation purposes. See generally 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (indicating that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities). Consequently, as there is no current disability within the appellate period, the Veteran’s claim seeking entitlement to service connection for diabetes mellitus must be denied. REASONS FOR REMAND Although the Board regrets the additional delay, the claims seeking entitlement to service connection for hypertension and chronic renal disease must be remanded for additional evidentiary development. The Veteran alleges that his current hypertension and chronic renal disease disabilities are etiologically related to his presumed in-service exposure to herbicide agents. In the August 2015 Notice of Disagreement, the Veteran also alleged that his hypertension is secondary to his now service-connected ischemic heart disease, see supra, and his chronic renal disease. In this same document, he alleged that his chronic renal disease was secondary to his diabetes mellitus (for which service connection has been denied, see supra) and hypertension. As noted above, the Board has conceded that the Veteran was presumptively exposed to herbicide agents via his service aboard the USS Worden, which was anchored in Da Nang Harbor in November 1968, within 12 nautical miles off the coast of the Republic of Vietnam. Consequently, the Board finds that the claims seeking entitlement to service connection for hypertension and chronic renal disease must be remanded for scheduling of a VA examination to assess whether these disabilities are etiologically related to the Veteran’s presumed in-service exposure to herbicide agents. Additionally, the VA examiner shall be requested to assess the Veteran’s relevant contentions involving secondary service connection. The Board is cognizant that the National Academy of Sciences (NAS) 2018 update to the report, “Veterans and Agent Orange,” upgraded hypertension from its previous classification in the category of “limited or suggestive” evidence of an association to herbicide agents, to the category of “sufficient” evidence of an association to herbicide agents. According to the NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide agent exposure. The Board declines to take judicial notice of the findings and conclusions found in the 2018 update to the NAS report, as this literature does not include facts of universal notoriety that are not subject to reasonable dispute. Monzingo v. Shinseki, 22 Vet. App. 97, 103 (2012). However, the Board will take judicial notice that the 2018 update to the NAS report “Veterans and Agent Orange” exists, and shall request that the VA examiner consider this update when formulating a medical nexus opinion. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to assess the nature and etiology of his current hypertension and chronic renal disease disabilities. Following a complete review of the electronic claims file, the examiner is requested to address the following inquiries: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current hypertension was caused by his active duty service, to include his presumed in-service exposure to herbicide agents? The examiner is requested to consider and discuss the NAS report, “Veterans and Agent Orange,” 2018 update, which concluded that there was “sufficient” evidence of an association between the chemicals of interest in herbicide agents and hypertension. The examiner is advised that simply stating that hypertension is not on the list of diseases presumptively associated with herbicide agent exposure is not a sufficient rationale for a negative opinion. b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current hypertension is proximately due to, the result of, or aggravated by his service-connected ischemic heart disease or his chronic renal disease? c) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current chronic renal disease was caused by his active duty service, to include his presumed in-service exposure to herbicide agents? d) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current chronic renal disease is proximately due to, the result of, or aggravated by his hypertension? The VA examiner is reminded of the recent precedential decision by the United States Court of Appeal for Veterans Claims in Ward v. Wilkie, 31 Vet. App. 233(2019), which held that aggravation under 38 C.F.R. § 3.310(b) does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence.” See id. at 239. The examiner must provide a complete rationale for all opinions expressed, based on the examiner’s clinical experience and medical expertise; established medical principles; and references to the evidence of record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante, 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.