Citation Nr: 21001192 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 12-16 504 DATE: January 7, 2021 ORDER Entitlement to service connection for hepatitis is denied. Entitlement to service connection for an eye condition, to include glaucoma and blepharitis is denied. Entitlement to service connection for bilateral lower extremity deep vein thrombosis is denied. FINDINGS OF FACT 1. The Veteran does not have a current disability of hepatitis. 2. The Veteran’s current eye condition, to include glaucoma and blepharitis, is not causally related to an injury, event, or disease in service. 3. The Veteran’s current bilateral lower extremity deep vein thrombosis is not causally related to an injury, event, or disease in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hepatitis are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.114, Diagnostic Code 7354 (2019). 2. The criteria for entitlement to service connection for an eye condition, to include glaucoma and blepharitis, are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.79, Diagnostic Code 6018 (2019). 3. The criteria for entitlement to service connection for bilateral lower extremity deep vein thrombosis are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.104, Diagnostic Code 7121 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1971 to January 1974 and served in Vietnam from March 1972 to February 1973. This June 2012 appeal comes before the Board of Veterans’ Appeals (Board) from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Detroit, Michigan. In the Veteran’s June 2012 appeal, he requested a board hearing. In September 2016, the Board remanded the case in order to schedule a hearing. The Veteran then notified the Board in April 2017 that he was withdrawing his hearing request. The Board remanded the case again in April 2018 for further development including medical examinations. The RO issued an August 2020 supplemental statement of case (SSOC), and the case was then returned to the Board for adjudication. Service Connection The Veteran is seeking service connection for hepatitis, an eye condition to include glaucoma and blepharitis, and bilateral lower extremity deep vein thrombosis. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted for any disease initially diagnosed after service 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). A veteran who during active military service served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that the veteran was not exposed to any such agent. 38 C.F.R. § 3.307(a)(6). To benefit from the presumption of service connection for diseases associated with herbicide agent exposure, the veteran must have one of the diseases enumerated in 38 C.F.R. § 3.309(e). Diseases entitled to presumptive service connection due to herbicide agent exposure, if manifest to a compensable degree within specified periods, even if there is no record of such disease during service, include: chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran served in the Republic of Vietnam between March 7, 1972 and February 12, 1973. See DD 214 and August 2010 Military Personnel Record. The Veteran is therefore presumed to have been exposed to herbicide agents while serving in Vietnam. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). However, hepatitis, eye conditions including glaucoma and blepharitis, and bilateral lower extremity deep vein thrombosis are not recognized as presumptive disabilities due to exposure to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Nevertheless, this does not preclude a finding of direct service connection. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). Lastly, the Veteran was awarded the Bronze Star Medal for meritorious service in connection with his service in miliary operations against hostile forces while stationed in Vietnam. See August 2010 Military Personnel Record. The Board finds that the Veteran’s military record, in addition to his award for service during combat, implicate the combat presumption under 38 U.S.C. § 1154(b). The combat presumption lowers the evidentiary burden for combat veterans to show proof that they incurred their disability or injury in service. Id. In the case of a combat veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Entitlement to service connection for Hepatitis The Veteran contends that his hepatitis is due to his exposure to herbicide agents while in service in Vietnam. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds that the Veteran does not have a current diagnosis of hepatitis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). An October 2010 VA medical treatment record states the Veteran is negative for hepatitis as of October 2010. See October 2012 VA Medical Treatment Records. A May 2019 VA examiner evaluated the Veteran and determined that the Veteran did not have a current diagnosis of hepatitis. See May 2019 VA Examination. The examiner included the Veteran’s most recent bloodwork that indicated the Veteran was negative for hepatitis. Id. In addition, there was no diagnosis of, or treatment for, hepatitis in the Veteran’s medical records. Id. Although the Veteran contends he was diagnosed and treated for hepatitis while in service in Vietnam, and believes he has a current diagnosis of hepatitis, he is not competent to provide a diagnosis in this case. The issue is medically complex and requires diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran has also not provided any indication that he has been informed by a competent medical professional that he has or has had hepatitis at a time proximate to the filing of the instant claim or later. Therefore, the Board gives more probative weight to the competent medical evidence. As the Veteran does not currently have a disability for VA purposes, the claim for entitlement to service connection for hepatitis must be denied. The benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for an eye condition, to include glaucoma and blepharitis The Veteran contends that his eye condition, to include glaucoma and blepharitis is due to his exposure to herbicide agents while in service in Vietnam. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds that, while the Veteran has a current diagnosis of blepharitis and as the Veteran is entitled to the combat presumption so that his blepharitis due to his in-service injury, event, or disease is presumed, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of blepharitis began during service or is otherwise related to an in-service injury, event, or disease. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). The Veteran’s enlistment examination notes eye trouble and the examiner diagnosed local blepharitis of the right eye lid. See October 2010 Service Treatment Records. An August 1973 eye examination was negative for any condition or disorder; however, the Veteran was using Visine. Id. The Veteran also indicated eye trouble on his November 1973 separation examination. Id. In May 2002, the Veteran was treated for blepharitis with warm soaks and lid scrubs. See April 2011 Private Medical Treatment Records. The Veteran was diagnosed with bilateral chronic open angle glaucoma in November 2005 and underwent laser trabeculoplasty. Id. The Veteran was treated again in March 2010 for blepharitis with weekly lid scrubs. Id. A June 2011 VA examiner opined that the Veteran’s blepharitis was not related to the Veteran’s military service. See June 2011 VA Examination. The examiner further stated that the Veteran had a history of being monitored for glaucoma, but that his history was extremely vague. Id. The examiner opined that the Veteran’s glaucoma was not related to his military service. Id. A May 2019 VA examiner diagnosed the Veteran with blepharitis and noted he was treating the condition with lid scrubs and eye washes, however there was no sign of glaucoma. See May 2019 VA Examination. In an August 2020 VA examination, the Veteran reported that his most recent eye doctor told him he did not have glaucoma; however, he was dealing with mild blepharitis. The VA examiner concluded that the Veteran had bilateral blepharitis, which did not cause visual impairment. Id. The VA examiner opined the Veteran’s blepharitis was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran’s service. Id. The VA examiner reasoned that blepharitis is caused by a hygiene issue and not from military or other outside factors. Further, there was no objective evidence on his exam or present in the Veterans’ file to support a current diagnosis of glaucoma. Id. Lastly, the VA examiner opined that there is no medical literature which supports that blepharitis can be caused by herbicide exposure and therefore no nexus could be established. The Board finds the Veteran’s eye condition, diagnosed as blepharitis, is not related to his military service. In addition, the Board finds the Veteran does not have a current diagnosis of glaucoma. The June 2011, May 2019 and August 2020 VA examiners are consistent in their respective opinions that the Veteran’s eye condition, diagnosed as blepharitis, is not related to Veteran’s military service, including exposure to herbicide agents. See June 2011, May 2019 and August 2020 VA Examinations. The August 2020 VA examiner explained that blepharitis is an eye condition resulting from a hygiene issue and is not caused by outside factors including herbicide agents. In addition, the May 2019 VA examiner noted there was no evidence of glaucoma, consistent with the August 2020 VA examiner’s report that there was no objective evidence of glaucoma found during the Veteran’s examination. The June 2011, May 2019 and August 2020 VA examinations are probative, they are consistent and based on an accurate medical history. In addition, the August 2020 VA examination provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Board gives more probative weight to the August 2020 VA examiner’s opinion. Although the Veteran has a current diagnosis of blepharitis, the preponderance of the evidence weighs against finding that the eye condition began during service or is otherwise related to an in-service injury, event, or disease. The Veteran offers only in-service herbicide agent exposure as a potential in-service event, injury, or disease. He has not, however, offered competent evidence indicating that the two may be associated. He has not established that he has any medical education, training, or experience. He is, therefore, a lay witness. 38 C.F.R. § 3.159(a). Whether blepharitis may develop after exposure to herbicide agents is a complex medical question involving processes internal to the body which are not observable through the senses. Moreover, even if that question was not medical, the Veteran is not competent to offer evidence that his herbicide agent exposure actually resulted in his blepharitis. Direct service connection cannot be established where there is no evidence indicating a nexus between a current disability and an in-service injury or disease. Holton, 557 F.3d 1363, 1366. The Board finds entitlement to service connection for an eye condition, to include glaucoma or blepharitis, is not warranted. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for bilateral lower extremity deep vein thrombosis The Veteran contends that his bilateral lower extremity deep vein thrombosis (DVT) is due to his exposure to herbicide agents while in service in Vietnam, and alternatively, is secondary to his service-connected hypertension. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. a) Direct Service Connection Although the Veteran is entitled to the combat presumption, the Veteran has not alleged that his DVT was present during service or made any satisfactory lay statement that a particular injury or disease occurred while on active service to from which he now claims his disability results. Instead, he asserts that he was exposed to herbicide agents. August 2011 Notice of Disagreement; June 2012 VA Form 9. As discussed, the Veteran’s exposure to herbicide agents is presumed regardless of his combat service. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). The Veteran’s service treatment records are absent for diagnosis, symptoms or treatment for DVT during service. The Veteran’s November 1973 separation examination indicate he’s in good health and are silent for any pain or other medical issues in his lower extremities. See October 2010 Service Treatment Records. The Veteran contends in his September 2010 claim that he was treated for a blood clot in his left and right leg at L.M.H. See September 2010 Application for Compensation. A June 2003 ultrasound indicated deep vein thrombosis in the right lower extremity from the femoral vein through the popliteal vein. See October 2010 Private Medical Treatment Records. However, a follow up ultrasound of the right lower extremity in March 2005 found no evidence of intraluminal thrombus. Id. An April 2007 ultrasound indicated deep vein thrombosis in the left lower extremity and a complete or almost complete occlusion of the femoral and popliteal veins. Id. During a routine medical exam in June 2009, the Veteran’s private physician (M.O., M.D.) noted that the Veteran had a history of DVT, was currently taking Coumadin to prevent the condition and would require daily medication for the remainder of his life. See October 2010 Private Medical Treatment Records. In a May 2019 VA examination, the Veteran reported that he was treated for DVT between 2002 and 2004 and later in 2010 and was taking Coumadin daily. The VA examiner opined that the Veteran’s DVT less likely than not had its onset during active service or was related to Veteran’s service, to include exposure to herbicide agents. Id. In support of his opinion, the examiner stated the Veteran was not first diagnosed with DVT until 2002-2004 which was long after his separation from service in 1974. In addition, it was not proven that DVT was related to exposure to herbicide agents. In a June 2020 VA examination, the examiner diagnosed the Veteran with bilateral lower extremity deep vein thrombosis, bilateral lower extremity varicose veins, and bilateral lower extremity post-phlebitic syndrome due to DVT. The VA examiner opined that the Veteran’s currently diagnosed DVT, varicose veins, or post-phlebitic syndrome were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s hypertension, or as a result of exposure to herbicide agents. Id. In support of her opinion, she noted that current medical literature does not associate DVT, varicose veins, or post-phlebitic syndrome with causation by hypertension or herbicide agent exposure, and therefore no nexus could be established. Id. The Board finds the Veteran’s DVT is not related to his military service. The May 2019 and June 2020 VA examiners are consistent in their respective opinions that the Veteran’s DVT is not related to Veteran’s military service, including his exposure to herbicide agents or any incident of combat service. See May 2019 and June 2020 VA Examinations. The VA examinations are also consistent with, and supported by, the Veteran’s private medical treatment records that indicate the Veteran was first treated for DVT in 2003. See October 2010 Private Medical Treatment Records. The May 2019 and June 2020 VA examinations are probative, they are consistent and based on an accurate medical history. In addition, the June 2020 VA examination provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Board gives more probative weight to the June 2020 VA examiner’s opinion. Although the Veteran has a current diagnosis of DVT, the preponderance of the evidence weighs against finding that the disability began during service or is otherwise related to an in-service injury, event, or disease. The Veteran offers only in-service herbicide agent exposure as a potential in-service event, injury, or disease. He has not, however, offered competent evidence indicated that the two may be associated. He has not established that he has any medical education, training, or experience. He is, therefore, a lay witness. 38 C.F.R. § 3.159(a). Whether DVT may develop thirty years after exposure to herbicide agents is a complex medical question involving processes internal to the Board which are not observable through the senses. Moreover, even if that question was not medical, the Veteran is not competent to offer evidence that his herbicide agent exposure actually resulted in his DVT. Direct service connection cannot be established where there is no evidence indicating a nexus between a current disability and an in-service injury or disease. Holton, 557 F.3d 1363, 1366. Therefore, the Board finds that entitlement to service connection for bilateral lower extremity deep vein thrombosis, including due to exposure to herbicide agents, is not warranted. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. b) Secondary Service Connection The Veteran contends for the first time in March 2018 that his DVT is caused by his service-connected hypertension. See March 2018 Informal Hearing Presentation. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran’s bilateral lower extremity deep vein thrombosis is proximately due to or the result of his service-connected disability. The Board finds that, while the Veteran has a current disability of DVT the preponderance of the evidence is against finding that the Veteran’s DVT is proximately due to or the result of his service-connected hypertension. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a). The June 2020 VA examiner opined that the Veteran’s currently diagnosed DVT, was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s hypertension. Id. In support of her opinion, she noted that current medical literature does not associate DVT with causation by hypertension and therefore no nexus could be established. Id. In support of his contention that his DVT is proximately due to or the result of his service-connected hypertension, the Veteran cited two medical studies, however he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of etiology, pathology and interpretation of complicated medical data. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training 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). In addition, the medical journal articles cited by the Veteran relate to risk factors for DVT after a traumatic fracture and the epidemiology of venous thromboembolism in patients with malignant glioma, conditions absent in the Veteran’s medical history. The Veteran also fails to indicate how the medical studies specifically relate to the facts and circumstances in his case, nor does he provide an analysis of how or if service connection could be determined by the information provided therein. Therefore, the treatise evidence has minimal probative value. See Wallin v. West, 11 Vet. App. 509, 513-514 (1998) (observing that treatise evidence cannot simply provide speculative generic statements not relevant to the veteran’s claim, but “standing alone,” must include “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion” (citing Sacks v. West, 11 Vet. App. 314 (1998)). Therefore, the treatise evidence has minimal probative value. Consequently, the Board gives more probative weight to the June 2020 VA examination made by a trained medical professional addressing the specific facts of this case and in consideration of current medical literature. Therefore, the Board finds that entitlement to service connection for bilateral lower extremity deep vein thrombosis as secondary to the Veteran’s service-connected hypertension is not warranted. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Aubee, 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.