Citation Nr: 21004458 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-14 045 DATE: January 27, 2021 ORDER Entitlement to service connection for a gall bladder disability resulting in a cholecystectomy, to include as due to in-service exposure to an herbicide agent or secondary to a service-connected disability, is denied. FINDINGS OF FACT 1. In-service exposure to an herbicide agent is conceded based on the Veteran’s nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. 2. The most probative evidence reflects that the Veteran’s gall bladder disabilities, diagnosed as cholecystitis and cholelithiasis, necessitating an October 2001 cholecystectomy, are not the result of any incident of active duty, to include in-service herbicide exposure, or caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria to establish service connection for gall bladder disabilities, diagnosed as cholecystitis and cholelithiasis, necessitating an October 2001 cholecystectomy, have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1964 to June 1968. This matter comes to the Board of Veterans' Appeals (Board) from a June 2016, rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The Veteran presented oral testimony in support of his appeal at a September 2017 Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the September 2017 hearing is of record and associated with the Veteran’s file. This issue, among others, was previously before the Board in January 2018 and October 2020, when it was determined that a remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board’s prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for a gall bladder disability resulting in a cholecystectomy, to include as due to in-service exposure to an herbicide agent or secondary to a service-connected disability, is denied. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on 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 to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. Service in the Republic of Vietnam includes service within the 12 nautical mile territorial sea of Vietnam. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966; Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Amyloidosis, 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; all chronic B cell leukemia (including, but not limited to hairy cell leukemia and chronic lymphocytic leukemia), Parkinson’s disease, multiple myeloma; non-Hodgkin's lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 75 Fed. Reg. 53202 (August 31, 2010), 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Analysis The Veteran asserts that he developed gall bladder disabilities, diagnosed as cholecystitis and cholelithiasis, necessitating an October 2001 cholecystectomy, as a result of his active duty, to include in-service exposure to an herbicide agent. In the alternative, he contends that his gall bladder disabilities and subsequent removal of the gall bladder were caused or aggravated by a service-connected disability. For the reasons discussed below, the Board concludes that the most probative evidence of record does not support his contentions, and thus, service connection for the claimed disabilities is not warranted. The Veteran’s file reflects that a cholecystectomy was completed in October 2001 due to diagnoses of cholecystitis and cholelithiasis. As such, element (1) to establish service connection under the theories of direct and secondary service connection is demonstrated. Concerning element (2), the Veteran’s service department records reflect that he served aboard the U.S.S. Turner Joy in the territorial waters off the coast of the Republic of Vietnam, and thus, in-service herbicide exposure has been conceded, as per a March 2020 internal memorandum within the Veteran’s file. See also Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Further, service connection has been established for several diseases, to include ischemic heart disease, diabetes mellitus, type II, with nephropathy and neurological impairment of the extremities, and cancer of the bladder, kidneys, and skin. Accordingly, element (2) to establish direct and secondary service connection, respectively, has been demonstrated. In view of above, the crux of the Veteran’s appeal is whether the most probative evidence addressing service connection element (3), medical nexus, bolsters the Veteran’s contentions under the theories of direct and/or secondary service connection. The Board will address this evidence under the laws applicable to the varying theories of entitlement set forth, below. At the outset, the Board notes that none of the Veteran’s diagnosed gall bladder disabilities are among the list of diseases presumed by VA to be caused by in-service exposure to an herbicide agent. As such, presumptive service connection for such is not warranted; however, the Veteran’s appeal may still succeed under the theories of direct and/or secondary service connection. 3.307, 3.309; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As noted by the Board in the October 2020 remand, the February 2020 VA opinion obtained by the AOJ is inadequate for the purpose of readjudicating the Veteran’s appeal because such did not consider the possibility of direct or secondary service connection. As such, the February 2020 VA opinion has no probative value regarding the matters before the Board and will be discussed no further. Consequent to the Board’s October 2020 remand, the AOJ obtained VA medical opinions in December 2020 that address the likely etiology of the Veteran’s appeal. After a review of the complete file, a VA physician opined that the Veteran’s gall bladder disabilities and resulting cholecystectomy were less likely as not proximately due to or the result of any incident of his active duty, to include presumed herbicide exposure, or caused or aggravated by any of his service-connected disabilities. In support of these opinions, the VA physician recounted the most common risk factors for gall bladder disease supported by medical literature, and noted that neither the Veteran’s active duty, to include conceded herbicide exposure, nor his service-connected disabilities were not to be risk factors for gall bladder disease. The Board finds the December 2020 VA opinions to be highly probative regarding these matters, as such were rendered by a VA clinician in consideration of all of the evidence of record. Further, the VA physician accompanied the offered opinions with soundly stated rationale that included citations to sound medical principles, medical treatises, and evidence within the Veteran’s file. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 297, 284 (1997). There is also no competent medical opinion evidence of record that contradicts any of the opinions of the December 2020 examiner. The only evidence in support of the Veteran’s appeal are his own contentions; however, as a lay person, he is not competent to render an opinion as to its cause or etiology, as that requires medical expertise which he is not shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The evidence does not reflect that the Veteran possessed a recognized degree of medical knowledge that would have rendered his opinions on medical causation competent. In view of the foregoing, the Board must unfortunately conclude that the preponderance of the evidence is against a finding that the Veteran’s gall bladder disabilities were incurred during active duty or caused or aggravated by a service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the Veteran’s appeal must be denied. 38 U.S.C. § 5107(b); see also, generally, Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.