Citation Nr: 21068940 Decision Date: 11/16/21 Archive Date: 11/16/21 DOCKET NO. 17-18 660 DATE: November 16, 2021 ORDER Entitlement to service connection for anemia, to include as due to Agent Orange exposure is denied. Entitlement to service connection for hypertension, to include as due to Agent Orange exposure is denied. Entitlement to service connection for seizure disorder, to include as due to Agent Orange exposure is denied. Entitlement to service connection for a sleep disorder, claimed as insomnia, to include as due to Agent Orange exposure is denied. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran's anemia is due to an in-service event, illness, or injury, to include Agent Orange exposure. 2. The evidence of record does not show that the Veteran's hypertension is due to an in-service event, illness, or injury, to include Agent Orange exposure. 3. The evidence of record does not show that the Veteran's seizure disorder is due to an in-service event, illness, or injury, to include Agent Orange exposure. 4. The evidence of record does not show that the Veteran's sleep disorder, claimed as insomnia is due to an in-service event, illness, or injury, to include Agent Orange exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for anemia, to include as due to Agent Orange exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for hypertension, to include as due to Agent Orange exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for seizure disorder, to include as due to Agent Orange exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. 4. The criteria for service connection for a sleep disorder, claimed as insomnia, to include as due to Agent Orange exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1971 to April 1972, including service in the Republic of Vietnam. These matters are before the Board of Veterans Appeals' (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, these matters were remanded for further development, to include providing the Veteran with VA examinations. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. Because the Veteran in this case served in Vietnam, exposure to herbicide agents has been established. If a veteran was exposed to an herbicide agent (to include Agent Orange) 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 that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, 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), all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 5(1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303. 1. Entitlement to service connection for anemia, to include as due to Agent Orange exposure 2. Entitlement to service connection for hypertension, to include as due to Agent Orange exposure 3. Entitlement to service connection for seizure disorder, to include as due to Agent Orange exposure 4. Entitlement to service connection for a sleep disorder, claimed as insomnia, to include as due to Agent Orange exposure The Veteran contends that he has anemia, hypertension, seizure disorder, and insomnia that is directly related to his active service. Indeed, he asserts that his disabilities are due to exposure to herbicide agents during the Vietnam era. As an initial matter, the Veteran has been exposed to herbicide exposure, and the competent evidence of record confirms that the Veteran has a history or anemia, hypertension, a seizure disorder, and insomnia. Concerning presumptive service connection due to Agent Orange exposure, these disabilities are not among the disorders entitled to presumptive service connection. 39 C.F.R. § 3.309 (e), Note 3. Notwithstanding the foregoing, even when presumptive service connection is not appropriate, a veteran is not precluded from establishing service connection with proof of actual direct causation. See Combee, supra. The Veteran's service treatment records (STRs) contain no complaints, treatment, findings, or diagnosis consistent with anemia, hypertension, seizures, or insomnia. On April 1972 separation examination, clinical evaluation of all systems was normal. Blood pressure was 116/80. Post-service treatment records note diagnoses of these disabilities several decades following service separation. Although hypertension and anemia are subject to presumptive service connection as chronic disease, the record is clear that the Veteran's anemia and hypertension disabilities were initially identified many years after active-duty service. As there is no showing of these disabilities in service or to a compensable degree in the year after service, presumptive service connection for anemia and hypertension as chronic disease is not warranted. 38 U.S.C. § 1112 (a); 38 C.F.R. § §§ 3.307, 3.309(a). In February 2010 correspondence, P.S., MD stated "the Veteran has been my patient since December 2004. I have treated him for hypertension and seizure disorder that may be related to his exposure to Agent Orange during his military service." In February 2012 correspondence, P.S., MD stated "the Veteran suffers with PTSD, insomnia, and chronic anemia. I believe these conditions are related to his military service where he was exposed to Agent Orange." In December 2019 VA medical opinions, the examiner opined that the Veteran's disabilities were less likely as not incurred in or caused by service, to include as due to Agent Orange exposure. She noted that none of the disabilities were shown in service, nor for many years post-service. Relevant to hypertension, the examiner indicated that the first post-service evidence of hypertension was in June 1978. She stated that there is secondary or "odd" causes of hypertension such as renal artery stenosis or tumors. The Veteran was worked up for these "odd" causes. He did not have any of these. The examiner noted that the Veteran has regular or essential hypertension. She indicated that the causes of essential hypertension are obesity, high salt diet, excessive alcohol intake, family history of hypertension, tobacco use to name a few. The examiner indicated that there are no medical studies supporting that essential hypertension is caused by herbicide exposure. Relevant to anemia, the examiner indicated that the evidence reviewed regarding anemia was from a hematology consultation in the 2016-2017 timeframe. The examiner indicated that this was several years post service. The examiner indicated that the Veteran's hemoglobin was currently normal; and notes that the Veteran has not had anemia noted on blood work since 2016. She indicated that the Veteran's anemia has currently resolved. Additionally, the examiner stated that anemia is caused by bleeding, B12 or folate deficiency, problems with bone marrow, cancer, certain medications, autoimmune disorders, viral infections, genetic disorders, and a history of radiation treatments. The examiner again indicated that currently the Veteran does not have any evidence of an anemia that would be caused by exposure to herbicides while in service. Relevant to seizure disorder, the examiner indicated that the first post-service evidence of seizure disorder was in 2010. The examiner indicated that although the Veteran reported experiencing seizures in the 1980's, there is no evidence in the file. The examiner indicated that even if the Veteran experienced seizures in 1984 as he reported, it is still several years post-service. The examiner noted a 2015 neurology note documents the Veteran has not had a seizure in years. The examiner indicated that some of the causes of a seizure disorder are stroke, brain injury, hypoxia, intracranial surgery, infection, encephalopathy, metabolic abnormalities to include glucose and electrolytes, genetics, alcohol withdrawal or other drug withdrawal or overdose. The examiner indicated that herbicide exposure in service is not a cause of a chronic seizure disorder. During March 2020 VA examination, the examiner opined that he Veteran's obstructive sleep apnea is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran denies problems prior to and during service. She noted that the Veteran's separation examination was void of a diagnosis of insomnia or obstructive sleep apnea. Further, she notes that the Veteran reports that he does not have sleep apnea, just has had insomnia since the 1970's. The examiner indicated that in adults, the most common cause of obstructive sleep apnea is excess weight and obesity which is associated with soft tissue of the mouth and throat. During sleep, when the throat and tongue muscles are more relaxed, this soft tissue can cause the airway to become blocked. The Board has considered the Veteran's statements that his disabilities are related to his service-connected, to include Agent Orange exposure. He is competent in this case to report his symptoms, but nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed conditions. A determination as to the etiology of anemia, hypertension, seizures, and insomnia is a medical matter beyond the knowledge of a non-expert, thus the Veteran's lay allegations as to the cause of his disabilities are not competent evidence. Because the record does not indicate that the Veteran has medical expertise, his lay opinions that his current disabilities are due to active duty to include Agent Orange exposure are of little probative value. The Board has also considered the February 2010 and February 2012 private opinions from Dr. P.S. that suggests the Veteran's disabilities are associated with Agent Orange exposure. Dr. P.S., however, did not provide any rationale as to the conclusions. As such, these opinions are of little probative value. The Veteran's statements and the February 2010 and February 2012 private medical opinions are outweighed by the more probative findings to the contrary by the December 2019 and March 2020 VA examiners. The VA medical professionals considered the pertinent evidence of record and found, with adequate rationale, against such a relationship between the Veteran's anemia, hypertension, seizure disorders, and insomnia and service, to include Agent Orange exposure. The Board finds the VA examiners' opinions highly probative, as they are based on accurate facts and supported by an articulated rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Finally, relevant to the Veteran's claim of insomnia, the Board observes that the Veteran's psychiatric disability has been service-connected, and sleep impairment is already contemplated in the evaluation assigned for this disability. Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against the Veteran's service connection claim for anemia, hypertension, seizure disorder, and insomnia. As such, these claims are denied. (Continued on the next page) The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.