Citation Nr: 20052956 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-34 389 DATE: August 10, 2020 ORDER The claim of entitlement to service connection for birth defects of a child due to exposure to herbicide agents is denied. REMANDED The claim of entitlement to service connection for obstructive sleep apnea (hereinafter OSA), to include as secondary to service-connected disabilities is remanded. The claim of entitlement to service connection for hypertension (hereinafter HTN) to include as secondary to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran served in Korea from August 1971 to September 1972, but was not a part of the units as determined by the Department of Defense (DOD) that operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period. 2. The Veteran’s son was not shown to suffer a form or manifestation of spina bifida. CONCLUSION OF LAW The criteria to establish service connection for birth defects due to exposure to herbicide agents have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1116, 1802, 1805, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.814 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from December 1966 to January 1974. These matters are before the Board of Veteran’s Appeals (Board) from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for birth defects due to exposure to herbicide agents, OSA, and HTN. In a July 2016 VA Form 9 Substantive Appeal, the Veteran requested a pre-determination hearing/hearing before the Board regarding the current claims on appeal. In subsequent correspondence, dated January 2019, the Veteran withdrew his prior request for a hearing. As the record does not contain any additional requests for an appeals hearing, the Board deems the Veteran’s request for a hearing to be withdrawn. See 38 C.F.R. § 20.702 (2019). The Board notes that the Veteran’s appeal also contained a service connection claim for posttraumatic stress disorder (PTSD) and depression, which was granted as generalized anxiety disorder with depressive features in a June 2016 rating decision. That award constitutes a full grant of the disability sought, and that appeal has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). The Board also notes that the Veteran’s appeal contained a claim for an increased rating for squamous cell carcinoma of the left vocal cord with residual throat irritation, post radiation therapy (hereinafter throat cancer). However, the Veteran’s VA Form 9 Substantive Appeals submitted July 2016 and August 2016 did not include the claim for an increased rating for his throat cancer. As such the claim for an increased rating for throat cancer was not perfected on appeal and is not before the Board. Entitlement to service connection for birth defects of a child due to exposure to herbicide agents The Veteran contends that he is entitled to service connection for mental disabilities for his son that the Veteran claims were caused by exposure to herbicide agents in service. Having reviewed all of the relevant evidence of record, the Board concludes that the Veteran's claim does not warrant service connection for birth defect due to herbicide agent exposure. The Board finds there is competent evidence that establishes the Veteran was not exposed to herbicide agents in service. VA shall pay a monthly allowance, based upon the level of disability, to or on behalf of a child of a Vietnam Veteran who has spina bifida and other birth defects, to include achondroplasia, cleft lip and cleft palate, congenital heart disease, congenital talipes equinovarus (clubfoot), esophageal and intestinal atresia, Hallerman-Streiff syndrome, hip dysplasia, Hirschprung’s disease (congenital megacolon), hydrocephalus due to aqueductal stenosis, hypospadias, imperforate anus, neural tube defects, Poland syndrome, pyloric stenosis, syndactyly (fused digits), tracheoesophageal fistula, undescended testicle, and Williams syndrome, that are associated with the Veteran’s exposure to toxic herbicide agents. 38 U.S.C. § 1805 (a), 1812, 1815; 38 C.F.R. §§ 3.814 (a), 3.815. Significantly, however, spina bifida is the only birth defect which warrants an award of monetary benefits based on the herbicide exposure of a Vietnam veteran who is the father of the child at issue. Jones v. Principi, 16 Vet. App. 219 (2002). To qualify for a monthly allowance on the basis of other birth defects (as listed above), a claimant must show that the Vietnam veteran who was exposed to herbicides is his or her mother. 38 U.S.C. §§ 1812, 1815; 38 C.F.R. § 3.815. An individual suffering from spina bifida is entitled to only one monthly allowance under this section, even if the individual's biological father and mother are or were both Vietnam veterans or veterans with covered service in Korea. 38 C.F.R. § 3.814. Covered service in Korea is defined as a person who served in the active military, naval, or air service in or near the Korean DMZ between September 1, 1967, and August 31, 1971, and who is determined by VA, in consultation with the Department of Defense, to have been exposed to an herbicide agent during such service. Exposure to an herbicide agent will be conceded if the veteran 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 DMZ in an area in which herbicides are known to have been applied during that period, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Id at (c)(2). VA procedures for verifying exposure to herbicide agents in Korea during the Vietnam Era are detailed in the VBA Adjudication Manual, M21-1, IV.ii.1.H.4.a, M21-1, IV.ii.1.H.4.b. VA has determined that there is a presumption of service connection for certain diseases that are associated with exposure to herbicide agents and that become manifest within a specified time period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam or in or near the Korean demilitarized zone (DMZ) during specified periods of time, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iv). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). In this case, the evidence shows that the Veteran had service in Korea during the period between April 1, 1968, and August 31, 1971; therefore the Board must address the issue of whether the Veteran served on or near the Korean DMZ, to determine if the presumption of service connection for certain diseases, that are associated with exposure for herbicide agents, like spina bifida, applies to the Veteran. See 38 C.F.R. §§ 3.307 (a)(6)(iv), 3.309 (e), 3.814 (a)-(b)(2). A review of the Veteran’s military personnel records reveals that he was stationed with the 122nd Signal Battalion with the 2nd Infantry Division and was in Korea from August 16, 1971, to September 15, 1972. His personnel records for that time period demonstrated that he was a power plant general equipment mechanic. See DD Form 214. The Board notes that the Veteran was not assigned to any of the major command assignments, units, or military entities that the DOD has identified as operating in the Korean DMZ during the appropriate period. See M21-1, IV.ii.1.H.4.b. The Veteran has not indicated nor provided any documentation that his son suffered from spina bifida. The only evidence of record is a statement from the Veteran that his son suffered from mental disabilities due to the Veteran’s Agent Orange exposure. See Notice of Disagreement submitted April 2015. The Veteran submitted multiple articles and documents from internet websites indicating the use of herbicide agents in Korean DMZ bases. The Veteran does include a statement that he went to Camp Casey and pictures from the internet of Camp Casey but does not indicate any details as to his length of time or his duties while at Camp Casey nor any duties into the Korean DMZ, nor do his military personnel records indicate such a visit nor being transferred or assigned duties in or to the Korean DMZ. The Board finds that the Veteran’s statements that he was assigned to the Korean DMZ are unsubstantiated by any personnel records associated with the file and therefore are found to be of little probative weight. The Board also acknowledges that VA’s efforts to substantiate the Veteran’s claims of exposure to herbicide agents. VA was unable to confirm the Veteran’s claims of exposure to herbicide agents in Korea in a Joint Services Records Research Center Division (JSRRC) memo from August 2014 indicating an inability to corroborate the Veteran’s claim of herbicide agent exposure as the records did not document any use, storage, spraying or transporting of tactical herbicides by the 122nd Signal Battalion and their duties did not include any history or documentation of any specific duties performed by the unit along the Korean DMZ. In light of the above evidence the Board finds the Veteran does not meet the requirements to have covered service in Korea pursuant to 38 C.F.R. § 3.814. As the Veteran’s claim for service connection for birth defects due to exposure to herbicide agents is contingent upon whether the Veteran being exposed to herbicide agents and his child suffering from spina bifida, the Board finds that the preponderance of the evidence is against the Veteran’s claims. In this case, even if the Board found that the Veteran had been exposed to herbicide agents while in Korea, there is no evidence or argument that the Veteran’s son had spina bifida or any manifestation thereof. Jones, 16 Vet. App. at 227; see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). The Board is sympathetic to the Veteran, but, for the foregoing reasons, finds that there is no legal entitlement to benefits under the applicable laws and regulations. The claims must therefore be denied. As the preponderance of the evidence shows that the Veteran was not exposed to herbicide agents during service, and does not meet the applicable criteria for compensation for the child of a veteran, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, service connection is not warranted and the Veteran’s claim for service connection is denied. (CONTINUED ON NEXT PAGE) REASONS FOR REMAND Entitlement to service connection for OSA, to include as secondary to service-connected disabilities See below. Entitlement to service connection for HTN, to include as secondary to service-connected disabilities The Veteran contends that he is entitled to service connection for HTN and OSA secondary to his service-connected throat cancer and treatment of his throat cancer. The Veteran has current diagnoses for both HTN and OSA. However, to date the Veteran has only received a VA examination for his HTN in March 2014 that did not consider whether the Veteran’s HTN was due to his throat cancer and did not provide an opinion as to whether the Veteran’s HTN was directly related to his active duty service. The Board also notes that the Veteran filled out and submitted a Disability Benefits Questionnaire in March April 2014, which the Board finds is inadequate as the Veteran is not a medical professional nor does the evidence of record indicate that the Veteran has specialized education or training. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). To date the Veteran has not received a VA examination for his OSA. The Board finds that there is insufficient competent medical evidence on file for VA to make a determination in the Veteran’s claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4)(i) (2019). Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103(A) (2012); 38 C.F.R. § 3.159. These matters are REMANDED for the following actions: 1. The Veteran should be scheduled for a VA examination before an appropriate physician regarding his claimed HTN secondary to his service-connected throat cancer. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect that these items were available for review. After performing all indicated tests and studies, the examiner should address the following: (a.) Please opine as to whether the Veteran’s HTN is at least as likely as not that this condition manifested during, or as a result of, active military service. (b.) The examiner should also provide an opinion as to whether it is at least as likely as not that any currently diagnosed HTN was either 1) caused by, or 2) aggravated by, a service-connected disability, including the Veteran’s throat cancer or treatment thereof. The term “aggravation” in the above context refers to a any incremental increase in disability any additional impairment of earning capacity in non-service connected disabilities resulting from service-connected conditions regardless of its permanence, beyond its natural progression, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Ward v. Wilkie, 31 Vet. App. 233 (2019). In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 2. The Veteran should be scheduled for a VA examination before an appropriate physician regarding his claimed OSA secondary to his service-connected throat cancer. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect that these items were available for review. After performing all indicated tests and studies, the examiner should address the following: (a.) Please opine as to whether his OSA is at least as likely as not that this condition manifested during, or as a result of, active military service. (b.) The examiner should also provide an opinion as to whether it is at least as likely as not that any currently diagnosed back disability was either 1) caused by, or 2) aggravated by, a service-connected disability including the Veteran’s throat cancer and treatment thereof. The term “aggravation” in the above context refers to a any incremental increase in disability any additional impairment of earning capacity in non-service connected disabilities resulting from service-connected conditions regardless of its permanence, beyond its natural progression, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Ward v. Wilkie, 31 Vet. App. 233 (2019). In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 3. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case (SSOC), afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, 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.