Citation Nr: 20054552 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 15-28 081 DATE: August 18, 2020 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a thyroid disability is denied. Entitlement to service connection for a prostate disability is denied. Entitlement to service connection for a lung disability is denied. Entitlement to service connection for a skin disability is denied. REMANDED Entitlement to service connection for acquired psychiatric disorder is remanded. Entitlement to service connection for right hand disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s hypertension had its onset in service, is otherwise related to service, or manifested within a year of separation from service. 2. The preponderance of the evidence is against finding that the Veteran’s thyroid disability had its onset in service or is otherwise related to service. 3. The preponderance of the evidence is against finding that the Veteran’s prostate disability had its onset in service or is otherwise related to service. 4. The preponderance of the evidence is against finding that the Veteran’s lung disability had its onset in service or is otherwise related to service. 5. The preponderance of the evidence is against finding that the Veteran’s skin disability had its onset in service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   2. The criteria for service connection for thyroid disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for prostate disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for lung disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for skin disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1963 to October 1965. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied the claims of service connection for lung condition, thyroid condition, prostate condition, skin condition, right hand condition, depression, and hypertension. The Board previously remanded these matters in September 2018 for further development. The RO complied with the Board’s remand directive to obtain the Veteran’s military personnel records. Regrettably, another remand is necessary to comply with the Board decision’s remand directives to obtain opinions as to the etiology of the Veteran’s acquired psychiatric disorder and right-hand disability. Stegall v. West, 11 Vet. App. 268 (1998). Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including hypertension, may be presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Entitlement to service connection for hypertension, thyroid disability, prostate disability, lung disability, and skin disability The Veteran contends his hypertension, thyroid disability, prostate disability, lung disability, and skin disability are related to his exposure to herbicide agents at Fort Gordon, GA. Specifically, the Veteran stated in his March 2013 Statement in Support of Claim (VA Form 21-4138) that he was stationed at Fort Stewart, GA when he was assigned to a detail at Fort Gordon, GA to fix the floors in the ammunition dumps. He further contended that he moved over 500 containers labeled “Agent Orange” that were damaged and leaking. When he asked a sergeant what was in the containers, he was told he did not need to know. There are certain diseases on the list of those presumed service-connected in Veterans exposed to herbicide agents. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e).  However, the absence of diseases on the list of those presumed service-connected in Veterans exposed to herbicide agents does not preclude a Veteran from alleging that the non-presumptive diseases with which he has been diagnosed are related to herbicide agent exposure.  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).  Here, as the evidence of record does not show that the Veteran had qualifying service in Vietnam or any other areas overseas where herbicide exposure is presumed, his claimed exposure to Agent Orange must be verified as there is no presumption of exposure. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. A review of the Department of Defense’s listing of herbicide use and test sites in the United States shows that herbicide agents were tested at Fort Gordon, GA. Government records show that Fort Gordon was a testing site for herbicide agents between July 15, 1967 and July 17, 1967 and an unspecified date in 1968, but prior to July 1, 1968. See Herbicide Tests and Storage in the U.S. at https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/usa.asp#Georgia. The Agency of Original Jurisdiction (AOJ) undertook efforts to verify whether the Veteran was exposed to herbicide agents. A January 2013 Personnel Information Exchange System (PIES) response indicated that the Veteran’s service records contained no reports of exposure to herbicides. VA subsequently issued a Formal Finding in July 2015 that reported that the evidence of record was insufficient to submit to the U.S. Army and Joint Services Records Research Center (JSRRC) to corroborate the Veteran’s report of exposure to herbicide agents. The Formal Finding further noted that the Veteran had no in-country service in Vietnam, thus, herbicide agent exposure could not be conceded. However, the Veteran’s service personnel records were not associated with the claims file at the time of the July 2015 VA Formal Finding. As per the September 2018 Board remand directives, the AOJ obtained the Veteran’s service personnel records in June 2019. Those records did not contain any evidence of the Veteran’s alleged detail to Fort Gordon, GA, service in Vietnam, or any other areas overseas where herbicide exposure is presumed. Thus, the Board is faced with the option of again remanding the claim for additional development, to include submission of a request to the U.S. Army and JSRRC to corroborate the Veteran’s report of exposure to herbicide agents, or deciding it based on the evidence of record. In light of the above, another remand could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”). However, as previously noted, the Veteran’s service personnel records do not contain any evidence of service at Fort Gordon, GA or in Vietnam or any other areas overseas where herbicide exposure is presumed. Therefore, rather than again remand the matter for the AOJ to attempt to verify whether in fact the Veteran was exposed to herbicide agents, the Board will decide this question, and the claim, based on the evidence of record. Although the Veteran is competent to relate his experiences in service, he is not competent to identify Agent Orange or herbicide agents because such medical and scientific determinations require education, training and experience that the Veteran does not possess. Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a layperson’s assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event occurred during service). While the Veteran’s contention that he was detailed to Fort Gordon for an assignment during service is credible, the Veteran’s military personnel record shows that he was on active duty from October 1963 to October 1965, approximately two to four years prior to the use of herbicide agents at Fort Gordon. Thus, the Veteran’s period of military service did not coincide with the testing done at Fort Gordon, and the Veteran’s report of exposure to herbicide agents at Fort Gordon during service is not credible. Therefore, because the preponderance of the evidence of record shows that the Veteran was not present at Fort Gordon when herbicide agents were used, the presumption of exposure to herbicide agents does not apply. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). However, the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis, as discussed below. For the following reasons, entitlement to service connection for hypertension, thyroid disability, prostate disability, lung disability, and skin disability is not warranted.  The Veteran meets the current disability requirement. A September 2012 VA treatment record noted diagnoses of hypertrophy of prostate, lung granuloma, and hyperpigmented macules on neck, temples, and chest. In addition, a January 2013 VA treatment noted a diagnosis of hypothyroidism. There is no lay or medical evidence of record indicating that the Veteran’s hypertension manifested in service or within the one-year presumptive period for chronic diseases or is related to service or may be associated with service. Furthermore, there is no lay or medical evidence of record indicating that the Veteran’s thyroid disability, prostate disability, lung disability, and skin disability manifested in service, are related to service, or may be associated with service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). To the extent that the Veteran’s lay statements suggest such a relationship, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n.4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). The Veteran has not been afforded VA examinations in connection with these disabilities.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, VA examination in regard to these claims are not required, as there is no evidence indicating that these disabilities may be associated with active military, naval, or air service, other than the Veteran’s own lay statements alleging nexus in his October 2012 claim. There is no evidence indicating that the Veteran’s hypertension had its onset in service, is related to service, or manifested within a year after separation from service, or that the Veteran’s thyroid disability, prostate disability, lung disability, and skin disability had their onset on service or are otherwise related to service, other than conclusory generalized lay statements, which are not enough to warrant VA examinations. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). For the foregoing reasons, the preponderance of the evidence is against finding that hypertension had its onset in service, is related to service, or manifested within a year after separation from service, or that the Veteran’s thyroid disability, prostate disability, lung disability, and skin disability had their onset in service or are otherwise related to service. The benefit of the doubt doctrine is therefore not for application, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder In the September 2018 remand, the Board directed the AOJ to obtain an opinion from a VA psychiatrist or psychologist as to the etiology of the Veteran’s acquired psychiatric disorder. The AOJ interpreted this directive as a request for an examination, instead of an opinion, and scheduled the Veteran for a VA examination in August 2019, for which he did not appear. A remand to obtain a VA opinion is therefore warranted as there was not substantial compliance with the Board’s September 2018 remand directive to obtain an opinion as to the etiology of the Veteran’s acquired psychiatric disorder. Stegall, 11 Vet. App. 268. Entitlement to service connection for a right hand disability An August 2019 VA examination noted the Veteran’s diagnoses of unspecified sprain of right hand and fingers and healed fracture of the distal phalanx of the right thumb. The Veteran had a right thumb fracture located at the distal phalanx seen on a November 1963 x-ray and a right wrist fracture with repair, which was seen on his most recent x-rays in August 2019. The Veteran’s right thumb fracture was no longer present on the x-ray of August 2019, and there was no joint space narrowing to suggest arthritis of the right thumb. Therefore, the Veteran’s healed fracture, distal phalanx, right thumb at least as likely as not had its onset in service or was otherwise related to service. However, his current unspecified sprain of the right hand and fingers was at least as likely as not related to fist fights and an associated right wrist fracture, which occurred subsequent to service. Additionally, there was hardware at the distal radius indicative of surgical treatment for a right wrist fracture on the Veteran’s August 2019 x-rays. Thus, the Veteran’s current symptoms related to his unspecified sprain of the right hand and fingers were at least as likely as not related to the trauma associated with the Veteran’s right wrist fracture, which happened after service. Therefore, the examiner found the Veteran’s unspecified sprain of the right hand and fingers less likely than not (less than 50 percent probability) had its onset in service or was otherwise related to service. However, there is no mention in the claims file of the Veteran’s involvement in any fist fights. Thus, the August 2019 VA opinion that the Veteran’s right hand disability is not related to service is of no probative value, as it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Another VA opinion as to the etiology of the Veteran’s right hand disability is therefore warranted. Accordingly, the matters are REMANDED for the following action:  1. Obtain an opinion from a VA psychiatrist or psychologist as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s acquired psychiatric disorder had its onset in service or is otherwise related to service. The claims file should be provided to and reviewed by the psychiatrist or psychologist.  A complete rationale should accompany any opinion provided. 2. Obtain an opinion from an appropriate physician as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right hand disability had its onset in service or is otherwise related to service. The claims file should be provided to and reviewed by the physician.  A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.