Citation Nr: 21071066 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 14-32 224 DATE: November 29, 2021 ORDER Entitlement to service connection for congestive heart disease with cardiomyopathy is denied. Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. FINDINGS OF FACT 1. A preponderance of the evidence of record is against the finding that the Veteran's claimed congestive heart disease with cardiomyopathy began during active service or is otherwise related to active duty service. 2. A preponderance of the evidence of record is against the finding that the Veteran's left shoulder disorder began during active service or is otherwise related to an in-service injury or disease. 3. A preponderance of the evidence of record is against the finding that the Veteran's right shoulder disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for congestive heart disease with cardiomyopathy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to May 1972. The Appellant is the Veteran's surviving spouse and has been recognized as the substitute claimant in the Veteran's appeal. This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held in this matter before the undersigned Veterans Law Judge (VLJ) in June 2017, a transcript of which has been associated with the record. The Board previously remanded the matter in March 2018 and May 2021 for additional development, and it has now returned for further appellate review. SERVICE CONNECTION Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service incurrence for certain diseases, including diabetes and ischemic heart disease, will be presumed based on an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. All veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. Notwithstanding the foregoing, a Veteran may establish service connection with proof of direct causation. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for congestive heart disease with cardiomyopathy The Appellant is seeking entitlement to service connection for congestive heart disease with cardiomyopathy, to include as due to exposure to jet fuel fumes and petroleum products, on behalf of the Veteran. The Board observes that in the June 2017 hearing before the undersigned VLJ, the Veteran asserted that his claimed heart condition may be etiologically related to Agent Orange exposure in Thailand. The Board takes notice of a declassified report entitled "Project CHECO Southeast Asia Report: Base Defense in Thailand," that shows that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. While the Report did not discuss the use of tactical herbicides on allied bases in Thailand, it did indicate sporadic use of non-tactical, or commercial, herbicides within fenced perimeters. Accordingly, VA has acknowledged that the herbicides used on the Thailand base perimeters may have been tactical or a commercial variant of much greater strength and with the characteristics of tactical herbicides. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. While the Veteran's military personnel record shows that he was stationed at U-Tapao Royal Thai Airforce Base, the record does not show that the Veteran's duties brought him within close proximity of the base perimeter or otherwise exposed him to herbicide agents while stationed at U-Tapao RTAFB. Therefore, the evidence of record does not show exposure to herbicide agents while on active duty. Accordingly, further development of this theory of entitlement is unnecessary, as the Veteran was not exposed to herbicide agents while on active duty. The Board will now address the issues of entitlement to service connection for congestive heart disease with cardiomyopathy on a direct basis or alternative as due to exposure to jet fuel fumes while on active duty service. VA treatment records show that the Veteran began treatment for cardiomyopathy approximately in 2004 and was diagnosed with ventricular tachycardia, coronary arteriosclerosis, and congestive heart failure. Accordingly, the Board finds that the Veteran did have a disability for VA purposes prior to his death. A review of the Veteran's service treatment records (STRs) show that the Veteran did not receive any diagnoses or treatment for any heart conditions or related symptomatology while on active duty. The Veteran's DD-214 reveals that the Veteran was employed as an aircraft maintenance specialist. Pursuant to the May 2021 Board remand decision, the Veteran's file was referred for a medical opinion regarding the nature and etiology of the claimed congestive heart disease. In July 2021, the examiner reviewed the Veteran's record and found that the claimed congestive heart disease was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. By way of rationale, the examiner observed that treatment records noted the etiology of the Veteran's cardiac conditions was alcohol use. The examiner further stated that the Veteran "had a negative ischemic work up in 2006 when he was initially diagnosed with CHF. There was no exposure or service treatment records that would suggest a late development of non-ischemic cardiomyopathy." Regarding the contention that the Veteran's claimed congestive heart disease was due to jet fuel exposure, the examiner found that "[t]here is no medical literature to suggest that exposure to jet fuel causes non-ischemic cardiomyopathy. Therefore the claimed heart condition is not caused from jet fuel exposure." The Board finds that the July 2021 VA examination report is highly probative for purposes of determining entitlement to service connection for congestive heart disease, because it addresses the Veteran's relevant medical records, theories of entitlement, and relevant medical research. As the record does not include competent evidence demonstrating that the Veteran's disabilities were incurred in or due to his active duty service. The only competent and probative opinions of record are those of the July 2021 VA examiner, which are negative to the claim. To the extent that the Appellant asserts that the Veteran's disabilities were incurred in or due to his active duty service, the Board finds the Veteran's lay assertions contained within the record as to the presence of lay observable symptoms (for example, pain) are considered competent evidence. However, as lay individuals, neither the Appellant nor the Veteran have shown that specialized training sufficient to render etiological opinions, especially in the presence of other possibilities (i.e., post-service occupation, aging, or alcohol use). Accordingly, their assertions on such matters are not competent evidence because such questions require medical expertise to determine. See 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). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. Accordingly, service connection for congestive heart disease is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for left and right shoulder disorders As there is considerable overlap in the applicable evidence for the Veteran's claims for entitlement to service connection for both left and right shoulder disorders, the Board will discuss the two claims together. The Appellant is seeking service connection for bilateral shoulder disorders on behalf of the Veteran. VA treatment records reveal that the Veteran received treatment for left and right shoulder pain. Accordingly, the Board finds that the Veteran had disabilities of the left and right shoulder prior to his passing. A review of the Veteran's STRs shows no treatment for or complaints of shoulder pain or related symptoms. Further, there is no indication in the evidence of record that the Veteran received any treatment for a shoulder disability prior to May 2006, approximately 34 years after discharge from active duty service. The Board observes that the Veteran testified before the undersigned VLJ that he dislocated his left shoulder while playing basketball on active duty in 1971, wherein he received emergency room treatment for the condition. However, as noted above, the Veteran's STRs contain no complaints, treatment, or diagnoses of this condition. The Veteran received VA examinations regarding his claimed shoulder conditions in May 2006 and August 2021. The May 2006 examination did not contain an opinion regarding whether or not the claimed condition is etiologically related to active duty service. However, in the August 2021 examination report, the examiner found that the claimed left and right shoulder disabilities were less likely than not related to active duty service. By way of rationale, the examiner noted that the Veteran's service treatment records and separation examination were silent for any shoulder complaints and that "the weight of objective medical evidence does not support the Veteran's claim of injury to the left [and right] shoulder during active duty service." The Board also notes the Veteran's lay statements that he believed his claimed shoulder disabilities were etiologically related to active duty service. However, the Board weighs the above-mentioned VA examination against the Veteran's lay contentions that his bilateral shoulder disabilities were due to service. While the Veteran was competent to testify to his symptoms, he was not competent to provide a medical opinion as to the etiology of his disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the VA examinations, which opined against a link between the Veteran's diagnosed bilateral shoulder disabilities and his service, to be of high probative value. Thus, the probative evidence of record preponderates against the Veteran's claim for service connection for left and right shoulder disabilities. In light of the above discussion, there is no evidence that the Veteran sought treatment for or was diagnosed with a left or right shoulder disability while in service, or within a year after service, and there is no medical opinion in the record linking his current disabilities to his active duty service. Therefore, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.