Citation Nr: 21002281 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-23 690 DATE: January 13, 2021 ORDER Entitlement to service connection for coronary artery disease (CAD) is denied. Entitlement to service connection for residuals of a stroke, to include limited mobility, is denied. Entitlement to service connection for a disability manifested by loss of sense of smell is denied. Entitlement to service connection for a disability manifested by loss of sense of taste is denied. Entitlement to service connection for a skin disorder is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for the cause of the veteran’s death is denied. FINDINGS OF FACT 1. The Veteran’s CAD was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran’s residuals of a stroke, to include limited mobility, did not manifest during service, and the disability is not otherwise etiologically related to an in service injury or disease. 3. The preponderance of the evidence of record is against finding that the Veteran had a disability manifested by a loss of sense of smell at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence of record is against finding that the Veteran had a disability manifested by a loss of sense of taste at any time during or approximate to the pendency of the claim. 5. The preponderance of the evidence of record is against a finding that the Veteran had a chronic skin disability, or that any such claimed disability was etiologically related to an in-service injury or disease. 6. The preponderance of the evidence is against finding that the Veteran’s acquired psychiatric disorder began during active service, or is otherwise related to an in service injury or disease. 7. The preponderance of the evidence of record does not show that the conditions that were the immediate cause of, or contributed to, the Veteran’s death were incurred in or caused by his service, or were caused or aggravated by his service-connected conditions. CONCLUSIONS OF LAW 1. The criteria for service connection for CAD are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for residuals of a stroke, to include limited mobility, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a disability manifested by a loss of a sense of smell are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a disability manifested by a loss of sense of taste are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a skin disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1310, 5102, 5103, 5103A 5107; 38 C.F.R. §§ 3.102, 3.159, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1968 to July 1972. These matters come before the Board of Veterans Appeals (Board) on appeal from a November 2014 rating decision. The Veteran died in August 2017. The Appellant is his surviving spouse and has been substituted as the appellant in this case. These matters were previously before the Board in February 2020 and August 2020. Service Connection 1. CAD The Appellant’s primary contention is that the Veteran’s CAD was the result of his in-service exposure to herbicide agents. Alternative theories including entitlement to service connection on a presumptive basis for chronic diseases and on a more direct basis have been raised by the evidence and are accordingly also addressed. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In July 2008, the Veteran was diagnosed with CAD and was later diagnosed with a variety of related heart conditions as evidenced by his treatment records and the August 2020 VA opinion. To the extent that CAD can be classified as cardiovascular-renal disease, it is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Moreover, the August 2020 VA opinion makes clear that the Veteran’s heart conditions were the result of his hypertension and hyperlipidemia, and hypertension is one of the conditions enumerated in that regulation. Id. However, neither hypertension nor CAD was shown as chronic during service and did not manifest to a compensable degree within one year after the Veteran’s separation from service in 1972. The earliest evidence for hypertension or CAD comes from the Veteran’s non-VA treatment records from July 2008. In his correspondence, such as a statement received March 2014, the Veteran appears to describe himself becoming aware of these conditions quite suddenly in July 2008, which would indicate that the symptoms were not longstanding before this onset in 2008 and certainly not present at or near the time of his service. In any event, there appears no documentation of these cardiovascular and heart conditions until nearly 4 decades after the Veteran’s service came to an end. This indicates that these conditions were not diagnosable or manifested until decades after the applicable presumptive period, and the criteria for service connection under the criteria for the presumption of chronic diseases are not met in this case. Notably, neither the Veteran nor the Appellant has really argued that the Veteran’s heart condition manifested during service or within one year of service. Instead, they have advanced the theory that these conditions are the result of exposure to tactical herbicide agents. CAD is one of the diseases that VA regulations presume to be connected to exposure to tactical herbicide agents used by the United States and allied forces during the conflict in Vietnam. 38 U.S.C. §§ 501, 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). This condition is presumed connected to service if it manifests to a degree of 10 percent or more at any time after service. Id. However, in order for this presumption to take effect, the Veteran must be either shown to have been exposed to herbicide agents or be presumed to have been exposed by regulation. Veterans who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, are presumed to have been exposed to tactical herbicide agents. Id. However, in the current appeal, the Veteran’s service does not include service in the Republic of Vietnam. Instead, the Veteran’s service records indicate that he was stationed at an Air Force base in Thailand, where he worked an aircraft mechanic on C-130 planes. As the memorandum in the Veteran’s claims file dated June 2014 explains, this service is not congruent with the way that operations involving tactical herbicides are known to have occurred. Limited tactical herbicide testing was conducted in an area of Thailand not near any U.S. military installation or Royal Thai Air Force base. Tactical herbicides were not otherwise used in Thailand. The tactical herbicides used in the Vietnam conflict were stored and used in Vietnam, and the military vehicles used to apply these weapons included C-123 aircraft and helicopters that were stationed in Vietnam and that flew lower than the C-130 aircraft the Veteran’s communications describe working on. Though the Veteran described working on aircraft that he believed were used to deploy tactical herbicide agents while serving in Thailand, the Board finds that this is not, by itself, sufficient to document his exposure to herbicide agents in light of the records indicating that the aircraft in Thailand were not used in this manner. VA has recognized that veterans who served in a capacity where they would have regular contact with base perimeters in Thailand would have been exposed to commercial herbicides and insecticides that had similar risk exposures to tactical herbicides. However, the Veteran does not appear to have served in this capacity, based on his military specialty, service records, or the communications he provided to VA. Consequently, the Board finds that the evidence of record weighs against a finding that the Veteran was exposed to tactical herbicide agents or similar chemicals during his service in Thailand. Consequently, the Board finds that the evidence of record weighs heavily against a finding that the Veteran was exposed to tactical herbicide agents and service connection under this presumption is not warranted. Finally, the Board has considered service connection on a direct basis and requested an opinion as to whether the Veteran’s report of chest pain in November 1971 was at least as likely as not the etiological source of the Veteran’s later diagnosed CAD. However, the preponderance of the evidence is against a finding that a medical nexus exists between the Veteran’s CAD and his in-service complaints of chest pain. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38C.F.R. § 3.303. As the Veteran’s service treatment records from that period indicate, chest pain was determined to be epigastric in nature, and the August 2020 VA opinion adequately explained that this condition was acute and without further symptoms or effect on the Veteran’s cardiovascular system, an opinion shared by the provider treating the Veteran at the time. The Board notes that the Veteran submitted an opinion from a private physician in June 2017 that relates the Veteran’s heart condition (and all his conditions) to his military service. This opinion is simply not very persuasive. The opinion appears to be based on a misunderstanding of the nature of the Veteran’s service because the physician indicates that the Veteran “served in the Republic of Vietnam and was exposed to Agent Orange.” As discussed above, this is not an accurate summation of the Veteran’s service. The Veteran served in Thailand, not Vietnam, and the evidence indicates that he was never exposed to tactical herbicide agents. The Board accords this medical opinion no probative value because the examiner does not appear to have accurately reviewed and apprehended the nature and location of the Veteran’s service. Consequently, the Board finds that the evidence or record weighs against finding that service connection for CAD is warranted. 2. Residuals of a stroke, to include limited mobility The Appellant contends that the Veteran’s residuals of stroke, to include limited mobility are the result of his exposure to tactical herbicide agents. Residuals of a stroke is not one of the conditions enumerated as presumptively related to exposure to tactical herbicide agents. 38 U.S.C. §§ 501, 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Nor does the evidence of record allow for a finding than the Veteran was exposed to tactical herbicide agents for the reasons described in above. Consequently, any claim based on the regulations governing entitlement based on the presumption relating to tactical herbicide exposure must be denied as unsupported by the evidence and the law. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The August 2020 VA opinion explains that the Veteran’s strokes were most likely caused by, or a result of, the endothelial changes in blood vessels precipitated and maintained by the metabolic changes produced by his diabetes mellitus, type II. When the Veteran raised this claim, he claimed service connection for this condition alongside a claim for diabetes. That claim was denied by the Board in August 2020. Because the evidence of record indicates that the Veteran’s multiple strokes (and, thus, their residuals, including any of their residuals) are the result of a condition that is not service-connected, the Board finds that the evidence of record weighs against a finding of a medical nexus between the residuals of a stroke and the Veteran’s service. The Board notes that the June 2017 private examiner came to the opposite conclusion. However, the Board is not persuaded by the June 2017 private examiner’s opinion because the examiner misapprehended the nature of the Veteran’s service and appears to ascribe all the Veteran’s neurological, cardiovascular, and metabolic symptoms to his exposure to tactical herbicide agents – an exposure that the evidence of record indicates did not occur. Consequently, the Board finds that the evidence of record weighs against a finding that there is a medical nexus between the Veteran’s residuals of a stroke and his service. Service connection for this disability is, thus, denied. 3. A disability manifested by a loss of smell and a disability manifested by a loss of sense of taste The Appellant claims service connection for a disability manifested by the loss of the Veteran’s senses of smell and taste. In life, the Veteran appeared to have asserted that these symptoms were the result of his exposure to tactical herbicide agents either directly or as a result of his strokes. Neither the Veteran’s nor the Appellant’s submissions clearly explain the nature of this claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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. In this regard, the Board concludes that the Veteran did not have a current diagnosis of a disability manifested by a loss of smell or taste and did not have 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). The Veteran’s service treatment records do not contain any mention of a loss of sense of smell or taste, nor do his post-service private or VA treatment records. The Veteran’s private physician who provided an opinion in June 2017 makes no mention of these conditions or symptoms. The only mention of these conditions or symptoms comes in the Veteran’s claim, notice of disagreement, substantive appeal, and similar forms, where the Veteran did little more than check boxes continuing the claims for these conditions. In the absence of medical treatment for or even a lay description of these conditions from the Veteran or Appellant, the Board is unable to find the existence of a disability. For this reason, service connection for disabilities manifested by loss of sense of smell and loss of sense of taste must be denied. To the extent that the Veteran’s assertions of these conditions can be construed as lay testimony that the Veteran had lost his senses of smell and taste secondary to his claimed exposure to tactical herbicide agents, that claim is denied as not supported by the evidence. As discussed above, the evidence of record does not support a finding that the Veteran was exposed to tactical herbicide agents. To the extent that the Veteran’s assertions regarding these symptoms or conditions can be construed as lay evidence that he had lost his senses of smell and tastes as a result of his stroke, his stroke itself is not subject to service connection for the reasons described in the previous section. 4. Skin disorder The Appellant seeks service connection for a skin condition. In life, the Veteran claimed that he had a skin condition secondary to his in-service exposure to tactical herbicide agents. The Veteran presented for a variety of skin conditions. August 2011 VA treatment records document that the Veteran had seborrheic keratosis, a dermal nevus or neurofibromatosis, and palmer xerosis. In a March 2014 statement, the Veteran claimed that he began to “always suffer from rare skin conditions that [he] thought were allergies.” The June 2017 non-VA examiner indicates that the Veteran was diagnosed with melanoma. The only skin condition documented in the service treatment records is pseudofolliculitis barbae (PFB). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current skin disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease. In this regard, the Board finds that the Veteran at various times during the pendency of this appeal had various conditions of the skin. However, the preponderance of the evidence weighs against a finding that the Veteran’s skin conditions began during service or are otherwise related to an in-service injury, event, or disease. The Veteran indicated that his “skin condition” began sometime after his return from Thailand. However, the Veteran did not explain how soon after his return from Thailand he noticed a problem with his skin. From the context of his statement, it appears to have been after he attended college, became a teacher, and subsequently became an industrial mechanic. His medical records do not appear to contain any record of skin related symptoms for nearly four decades after his service. Consequently, the Board finds that, other than PFB, none of the skin conditions began during the Veteran’s service. The Board also finds that the evidence of record weighs against a finding that there is an etiological relationship between the Veteran’s skin conditions and his service. The only theory suggested by the Veteran (or the Appellant) as to how his skin conditions are related to his service is that he was exposed to tactical herbicide agents. The private opinion provided in June 2017 appears to ascribe the Veteran’s skin condition to his exposure to tactical herbicide agents. However, as discussed previously, the evidence of record is not congruent with a finding that the Veteran was exposed to these tactical herbicide agents. The Board is not persuaded by the June 2017 opinion since it is based on an unsupportable factual basis regarding the nature and location of the Veteran’s service and his exposure to tactical herbicide agents. Because neither the claimant nor the record suggests any other theory, the Board finds that entitlement to service connection for a skin condition, other than PFB, must be denied as not supported by the evidence. Regarding PFB, the evidence appears clear that the Veteran suffered from this condition, at least briefly, for a few months toward the end of his period of service in 1972. However, there is no evidence in the record that the Veteran’s PFB recurred or was an ongoing disability at any point during or proximate to the appeal period. Consequently, entitlement to service connection for PFB must be denied for lack of a current disability. 5. An acquired psychiatric disorder The Appellant contends that the Veteran’s acquired psychiatric condition is the result of his service. In this regard, the Board notes that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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. In this regard, the Board notes that, at the time of his death, the Veteran was diagnosed with, and treated for, dysthymia. This diagnosis appears to have been made in approximately 2011 and correlates to the Veteran’s increasing ill-health as a result of many of the conditions currently on appeal (but for which the Board is denying service connection), most especially the limited mobility and pain in his left hand and arm which he claimed as a result of his stroke. There is no evidence that the Veteran’s dysthymia began during his service, and the September 2020 opinion similarly indicates that his dysthymia began in 2011 and is related to his physical condition, citing the clinical reports from the time. Consequently, the Board finds that service connection for an acquired psychiatric condition cannot be granted. The Board notes that the Veteran in some of his correspondence and VA treatment records appears to have portrayed himself as a combat veteran serving on a base that was the “closest” base to the Ho Chi Minh Trail. As a result of some of these reports, it appears that some VA treatment providers speculated on the possibility that the Veteran had PTSD, and the Veteran’s non-VA provider in June 2017 purported to diagnose the Veteran with PTSD base on his service in Vietnam. As previously discussed, the Veteran served at a base in Thailand and repaired aircraft. There is no evidence to indicate that the Veteran was involved directly in combat or was in close proximity to combat. The June 2017 private examiner’s diagnosis of PTSD appears to be based on a misunderstanding of the nature and location of the Veteran’s service and is therefore not credible. Consequently, the June 2017 opinion does not change the Board’s conclusion that entitlement to service connection for an acquired psychiatric disorder must be denied. 6. Cause of the Veteran’s death The Appellant seeks service connection for the cause of the Veteran’s death. The Veteran died in August 2017. The cause of the Veteran’s death was cardiac arrest due to or as a result of acute respiratory arrest. To establish service connection for the cause of the Veteran's death, the evidence must show that disability incurred in or caused or aggravated by service either caused or contributed substantially or materially to the cause of death. For a service-connected disability to be the cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death but rather it must be shown that there was a causal connection. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Service connection may be established for a disease or injury incurred in or caused or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). Here, the evidence of record is against finding that the Veteran’s death is related to his service. There is no indication or suggestion in the record that the Veteran’s only service-connected disability (tinnitus) caused or contributed to his death. The Veteran’s death was caused by his heart condition and a respiratory condition. The Veteran’s heart condition has been treated separately in this appeal and was determined not to be related to his service for the reasons stated in that section. It is not necessary to repeat them here. As to the respiratory condition, the Veteran’s service treatment records contain no information that would suggest a respiratory condition began during service or information of a disease or injury that would be relevant to the later development of one. The Board surmises that, like the rest of the conditions discussed, the Veteran would have ascribed (and indeed the Appellant does ascribe) the Veteran’s respiratory problem to his alleged exposure to tactical herbicide agents. Because the evidence indicates that no such exposure occurred, the Board cannot find for the Veteran on this issue either. Consequently, the Board concludes that the evidence of record does not warrant establishing service connection for the cause of the Veteran’s death. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.