Citation Nr: 21062581 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-34 945 DATE: October 8, 2021 ORDER Entitlement to service connection for migraine headaches is denied. Entitlement to service connection for a disability manifested by dizziness is denied. Entitlement to service connection for a disability manifested by nausea is denied. FINDINGS OF FACT 1. Migraine headaches did not manifest during service, were not diagnosed within one year of service, and are not etiologically related to service. 2. The weight of the evidence is against a finding that the Veteran has a disability manifested by dizziness that began during service or was otherwise caused by his active service. 3. The weight of the evidence is against a finding that the Veteran has a disability manifested by nausea that began during service or was otherwise caused by his active service. CONCLUSIONS OF LAW 1. Headaches did not manifest during service, may not be presumed to have been incurred therein, and are unrelated to service. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a disability manifested by dizziness have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a disability manifested by nausea have not been 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 had active service from August 1972 to August 1975. Issues 1-3: Entitlement to service connection for migraine headaches; a disability manifested by dizziness; and a disability manifested by nausea. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for organic diseases of the nervous system such as headaches if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has multiple contentions regarding the etiology of his claimed migraine headaches, dizziness, and nausea. In his November 2013 claim, the Veteran stated that his migraine headaches, dizziness, and nausea began in 1974. He explained that he served aboard the USS Sanctuary after the Sanctuary returned from Vietnam. The Veteran contended that his migraines, dizziness, and nausea were based upon environmental exposure to toxins to include but not limited to Agent Orange and asbestos exposure. The Veteran also cited to articles that show there were toxins on the USS Sanctuary, to include an article from the Baltimore Sun dated August 19, 2011 that states that the Sanctuary has been tested and found to contain dangerous levels of polychlorinated biphenyls, or PCPs, that are carcinogenic chemicals used extensively in ships of that era. The Veteran noted that he was a machinist mate and worked amidst the toxins. He also pointed out that the USS Sanctuary was on the list of Agent Orange ships. See also August 2020 Board hearing transcript. In a November 2014 statement the Veteran further contended that he was exposed to secondhand cigarette smoke aboard the ship. In the August 2015 notice of disagreement, the Veteran explained that the USS Sanctuary was docked at Hunters Point Naval Shipyard in San Francisco, CA, which was used as a living laboratory as it conducted studies related to radioactive waste for deep sea disposal and radiation detection instrumentation development. The Veteran indicated that it also decontaminated and disposed of ships involved in nuclear weapons test in the Marshall Islands. The Veteran noted that according to the EPA this resulted in contamination in the ground water, surface water, and soil with Radium-226, Cessium 137, and Strontium-90. The Veteran stated that according to the Mayo Clinic headaches and nausea are signs of radiation sickness. In support of his claims, the Veteran also submitted lay evidence in addition to his own statements. In a lay statement in May 2014, the Veteran's officer during service, A.R.P., confirmed that the Veteran was an auxiliary man aboard the Sanctuary and was responsible for a large variety of machinery and equipment. He also was tasked with machinery watches in the engine room, which was a 440 pound steam turbine power plant with steam powered turbo-generators. They were all heavily cloaked in asbestos and used exotic fluids and fuels, all today known or suspected to be carcinogens. A.R.P. noted that the Veteran daily was exposed to asbestos in the lagging and insulation of equipment spaces. He was assigned to work with oils and lubricants that in some cases likely contained cancer causing PCBs. He also would work with "Red Led" paint. The Veteran cleaned air duct filters and heat exchangers and was exposed to a variety of acids and carbon tetrachloride. Service treatment records do not document complaints, findings or treatment for headaches, nausea, and dizziness. Service personnel records show that the Veteran served aboard the USS Sanctuary, including from March 1973 to March 1975. His DD 214 Form shows he was a mechanic during service. In an opinion in September 2013, the Veteran's private doctor, Dr. D.S., stated that while the Veteran was aboard the USS Sanctuary, he was exposed to possible neurotoxins between 1972 and 1975, and this could be causing his headaches, dizziness, and nausea. The Board rejects the September 2013 private opinion as it was couched in terms of possibility rather than probability. An opinion expressed in the term of "could" or "can," the equivalent of "may," also implies that it "could not" or "cannot" be possible and it is too speculative to establish service connection for the Veteran's claimed disorders. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (The term "may" also implies that it "may not" and it is too speculative to establish a nexus.); Obert v. Brown, 5 Vet. App. 30 (1993) (the Board in expressing doubt as to the sufficiency of a medical opinion is required to further develop the case and seek further medical evidence that would either support or repudiate evidence from other physicians.). Further, the examiner provided no rationale for this conclusion. A mere conclusion statement is insufficient to allow the Board to make an informed decision as to the weight to assign to the medical statement. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). As for the literature discussed above that the Veteran cited, medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses 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. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). The Board has considered and weighed such evidence but finds that the literature the Veteran cited does not offer any probative support for the Veteran's claim. The Board places little probative value on the literature referenced by the Veteran as it was written to explain general medical principles, and not opinions regarding the specific facts in this case. The literature does not address the facts that are specific to the Veteran's case and does not tend to establish that the Veteran's claimed headaches, dizziness, and nausea were the result of his claimed exposure to toxins during service. As for the Veteran's contentions that he was exposed to Agent Orange during service, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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 U.S.C. § 1116(f). The Federal Circuit issued a decision expanding the eligibility for presumptive service connection to all veterans who had served on ships in the territorial seas, within 12 nautical miles, of the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Notwithstanding the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), relating to presumptive service connection due to exposure to Agent Orange, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98- 542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of actual causation, that is, proof the exposure to Agent Orange actually causes a disorder, which is not included in the list in 38 C.F.R. § 3.309(e). See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). Notably, headaches, a disability manifested by dizziness, and a disability manifested by nausea have not been found by the National Academy of Science to be epidemiologically linked to herbicide exposure and are not subject to presumptive service connection based on in-service herbicide exposure under 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e). Thus, the presumptive provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e) are inapplicable, and the Veteran's claim must be considered on a direct basis pursuant to 38 C.F.R. § 3.303(d). The Board has carefully considered the Veteran's contentions to the effect that he was exposed to Agent Orange during service. A discussed above, the Veteran does not contend nor do his service personnel records show that he was in the Republic of Vietnam or within 12 nautical miles of the Republic of Vietnam. The Veteran's speculations or conjecture regarding his claimed indirect exposure to herbicides during service causing his headaches, dizziness, and nausea are not substantiated by the evidence of record. As for radiation exposure during service, in an August 2015 statement, the Veteran clarified that he was not contending that he worked directly with radiation but that during his time at Hunter Point, the contaminated water and radiological environment caused his migraines. He stated that he was exposed to trichloroethylene (TCE), which causes headaches and dizziness, and noted that reports show that TCE was at Hunter Point. The Veteran's service records do not include records of exposure to ionizing radiation, to include the DD Form 1141, Record of Occupational Exposure to Ionizing Radiation. In February 2017 the Naval Dosimetry Center confirmed that the exposure registry revealed no reports of occupational exposure to ionizing radiation pertaining to the Veteran. In February 2017 VA provided the Veteran with a letter, VA Form RRAIS, Radiation Risk Activity Information Sheet, and asked that he provide the pertinent information within 30 days. That same month the Veteran replied that as he was not a witness to any nuclear tests and was not at Hiroshima or Nagasaki, it would not be useful to fill out the Radiation Risk Activity Information Sheet. Instead, he explained that his contention is that he was at Hunter's Point Naval Yard in the early 1970s, which was on the EPA super Fund cleanup site list, and while the Naval Radiological Defense Laboratory closed in 1969 licenses were issued until the 1970s for studies. The Veteran reiterated that the fact that Hunter Point is on the EPA Superfund cleanup list is proof of radiation exposure for each person who was there. Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by one of three possible methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service-connected specific to radiation-exposed veterans. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309(d). Second, a "radiogenic disease" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that a disease diagnosed after discharge from service was otherwise incurred during active service, including as a result of exposure to radiation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The issues on appeal do not include cancer and 38 C.F.R. § 3.309(d) is inapplicable and need not be further addressed. As for 38 C.F.R. § 3.11(a), headaches, dizziness, and nausea are not radiogenic diseases, however VA regulatory criteria provide that other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311 (b)(4). In the instant case the literature the Veteran referenced discussed above, does not support the finding that his claimed migraine headaches, dizziness, and nausea are radiogenic diseases. As for 38 C.F.R. § 3.303(d) the competent evidence does not show that the Veteran's claimed migraine headaches, dizziness, and nausea were incurred as a result of exposure to radiation in service. The Board acknowledges that as regards to the Veteran's claim of asbestos exposure in service, VA has established certain procedures on developing claims based on asbestos exposure in service. Assuming that the Veteran had asbestos exposure in service, the weight of the competent evidence does not show that his claimed headaches, dizziness, and nausea are related to asbestos. As a lay person, the Veteran is competent to report symptoms pertaining to his claimed headaches, dizziness, and nausea. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the etiology of his claimed disorders falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The Veteran's claimed migraine headaches, disability manifested by dizziness, and disability manifested by nausea are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such disorders. Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. As the lay evidence is not competent the matter of whether it is credible is not reached. Notably, during the August 2020 Board hearing the record was left open for 60 days in order for the Veteran to submit a supplemental opinion regarding the etiology of his claimed migraine headaches, dizziness, and nausea. The Veteran has not submitted such an opinion. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a claimant wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the putative evidence. The Board acknowledges that the Veteran has not been provided VA examinations to determine the nature and etiology of his claimed migraine headaches, disability manifested by dizziness, and disability manifested by nausea. The competent and credible evidence does not establish an in-service incurrence, or continuity of symptoms since service in the case for the disabilities claimed herein. Therefore, it is insufficient to trigger VA's duty to assist by providing medical opinions regarding service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, VA examinations or opinions are not necessary as to these matters on appeal. Headaches are included among the chronic diseases under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To the extent that the Veteran is asserting continuity of symptomatology, his assertions are outweighed by the evidence of record discussed above. The Board finds that the preponderance of the evidence is against the claims for service connection for migraine headaches, a disability manifested by dizziness, and a disability manifested by nausea. Accordingly, the benefit-of-the-doubt rule does not apply, and the claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.