Citation Nr: 21076361 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-41 333 DATE: December 23, 2021 ORDER Service connection for an eye condition is denied. Service connection for a respiratory condition, claimed as respiratory failure and lung cancer, is denied. Service connection for hypertension is denied. Service connection for chronic hepatitis, or a liver condition, is denied. Service connection for a skin disability is denied. Service connection for Grave's disease is denied. Service connection for diabetes mellitus, type II, is denied. Service connection for bilateral upper extremity peripheral neuropathy is denied. Service connection for bilateral lower extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran's in-service exposure to toxic chemicals caused a current eye condition. 2. The weight of the evidence is against finding that the Veteran was diagnosed with a respiratory condition during the period on appeal; or that the Veteran's in-service exposure to toxic chemicals otherwise caused a current respiratory condition. 3. The weight of the evidence is against finding that the Veteran's in-service exposure to toxic chemicals caused hypertension. 4. The weight of the evidence is against finding that the Veteran's in-service exposure to toxic chemicals caused a current liver condition. 5. The weight of the evidence is against finding that the Veteran's in-service exposure to toxic chemicals caused a current skin condition. 6. The weight of the evidence is against finding that the Veteran's in-service exposure to toxic chemicals caused Grave's disease. 7. The weight of the evidence is against finding that the Veteran's in-service exposure to toxic chemicals caused diabetes. 8. The weight of the evidence is against finding that the Veteran's in-service exposure to toxic chemicals caused bilateral upper extremity peripheral neuropathy. 9. The weight of the evidence is against finding that the Veteran's in-service exposure to toxic chemicals caused bilateral lower extremity peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria for service connection for an eye condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for a respiratory condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. The criteria for service connection for a liver condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 5. The criteria for service connection for a skin condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 6. The criteria for service connection for Grave's disease have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 7. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 8. The criteria for service connection for bilateral upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 9. The criteria for service connection for bilateral lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to December 1972. This appeal was previously before the Board in June 2018. The Board sought outstanding private and VA treatment records. The service connection claims were also remanded for VA examinations, to obtain etiology opinions regarding each of the claimed conditions, which will be discussed in the section below. The Board notes that numerous VA treatment records have been associated with the claims file since the June 2018 Board remand. The Veteran was also sent a Subsequent Development Letter, seeking authorization for any and all private treatment records related to his service connection and increased ratings claims. However, VA has not received a response from the Veteran, a completed VA Form 21-4142, or any private treatment records that would aid in his claims. The Board finds that there has been substantial compliance with the June 2018 Board remand directives, as they relate to the outstanding treatment records. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also notes that the Veteran's representative's October 2021 Appellate Brief acknowledged that their review of the claims file indicated that the Agency of Original Jurisdiction had complied with the Board's remand directives. The Board also notes that the Veteran's representative did not provide any new evidence or new argument and believed that they had introduced into the record, the essential elements of the Veteran's position, in support of his case. The increased rating claim for posttraumatic stress disorder (PTSD) was remanded for a new VA examination. A June 2020 rating decision granted a 100 percent rating for PTSD, effective the date of claim, August 27, 2009. Here, given that the Veteran has been granted a total schedular rating, for the entire period on appeal, the Board finds that it is considered a full grant of benefits sought on appeal, and the appeal concerning the increased rating for PTSD is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service Connection Service connection requires competent evidence showing: (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 (Fed. Cir. 2004). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. However, presumptive exposure to herbicide agents is only afforded to a narrow set of Veterans, which the Veteran is not a part of, as the evidence of record does not indicate that he served in either Vietnam or the territorial waters, Korea, or Thailand. Further, the Veteran has not asserted that he was exposed to herbicides agents. Service connection for an eye condition is denied. Service connection for a respiratory condition, claimed as respiratory failure and lung cancer, is denied. Service connection for hypertension is denied. Service connection for chronic hepatitis, or a liver condition, is denied. Service connection for a skin disability is denied. Service connection for Grave's disease is denied. Service connection for diabetes mellitus, type II, is denied. Service connection for bilateral upper extremity peripheral neuropathy is denied. Service connection for bilateral lower extremity peripheral neuropathy is denied. The Veteran asserts that the claimed conditions are due to his active-duty service. Specifically, he asserts that he developed these problems due to chemical exposure from cleaning aircraft fuel cells. A review of the Veteran's service treatment records (STRs) shows treatment for a heart condition and for a psychiatric condition. However, there do not appear to be any complaints, treatment, or diagnosis for any eye conditions, respiratory conditions, hypertension, a liver condition, a skin condition, Grave's disease, diabetes, or diabetic neuropathy. A review of the Veteran's post-service treatment records shows a diagnosis for retinopathy, hypertension, liver cirrhosis, diabetes, and diabetic neuropathies. The treatment records also show that he was being treated for Grave's disease in 2020. However, the treatment records did not appear to show any respiratory issues or diagnoses for any respiratory conditions. His respiratory check-ups consistently revealed normal lungs. The only respiratory therapy notes were related to obstructive sleep apnea. As previously discussed, the June 2018 Board decision remanded the service connection claims. The Board noted that the Veteran had not been provided with VA examinations, for any of his claimed conditions. Given his lay statements and assertions, that he was exposed to toxic chemicals, the Board found that the Veteran should be afforded VA examinations regarding all of the claimed conditions to ascertain the etiology of the claimed conditions. The Veteran was scheduled for VA examinations in August 2020. However, an October 2020 VA Report of General Information noted that the Veteran called a day before the scheduled examinations, and stated that he did not want to report because of COVID-19, so everything was canceled and nothing was scheduled. Further correspondence showed that the Veteran was contacted to assess his willingness to report for VA examinations. He reported that he did not want to report for the VA examinations and wanted to have his claims evaluated based on the evidence of record. See Correspondence dated July 3, 2021. As such, the Board finds that there has been substantial compliance with the June 2018 Board remand directives, as they relate to providing VA examinations. See Stegall v. West, 11 Vet. App. 268, 271 (1998). VA received correspondence from the Veteran in August 2010. This statement was similar to the account reported in the August 2009, Statement in Support of Claim. The Veteran reported that he was exposed to a chemical, C1-2, that was used in A7 aircraft during the Vietnam era. He explained that the fuel ports of the aircraft were clearly marked with skull and crossbones and was told not to have any contact with the chemical because it was very toxic. He also reported that he had to go into a fuel cell because the chemical did not completely evacuate from the cell. He was ordered to do so without any protective breathing apparatus, or any protective clothing, so the front portion of his body was subjected to being soaked with jet fuel and the chemical. A few minutes later, he then reported that he noticed a metallic taste in his mouth and when he spit, blood came out of his mouth. He reported that he became sick very soon after being exposed to the chemical. In closing his correspondence, he also reported frustration with the VA, that over the years, he feels as though he and his family have not been treated fairly by VA, in both their medical treatments and in the adjudication of their claims. The Board also acknowledges the July 2010 notice of disagreement, where the Veteran attached several pages of information sheets about Jet Fuel Propellant (JP-8). The information sheets, which contained information from the Air Force, and from the Occupational Safety and Health Administration (OSHA), explained the possible effects from exposure to JP-8. First, the Board would like to express that it has heard the Veteran's statements and assertions. The Board emphasizes that it appreciates the Veteran's zealous advocacy in pursuit of his claims. The Board also appreciates and recognizes the evidence the Veteran has submitted in support of his service connection claims, notably his credible lay statements regarding the in-service exposure and the information from the Air Force and from OSHA. The Board also acknowledges that the Veteran's MOS, as an electrician, corroborates that he was exposed to toxic chemicals as part of his duties servicing aircraft. Given his MOS, the Board also finds his presentation, that he had to enter a fuel cell, to make sure that all of the jet fuel and chemicals had been fully evacuated, when he got soaked by the liquid, to be highly credible. Here, the Board recognizes that the Veteran was exposed to toxic chemicals and finds his lay statements to be highly credible and the information about JP-8 to be informative. Based on the foregoing, the Board recognizes that the Veteran has shown an in-service incurrence, his exposure to toxic chemicals; and has also shown current diagnoses regarding his various service connection claims, except for a respiratory condition. However, in order to prevail on a service connection claim, the Veteran must also have a competent medical opinion linking his in-service incurrence with a current disability. To the extent that the Veteran believes that any of the claimed conditions are the result of his in-service exposure to toxic chemicals, such medical opinions require medical expertise, and those determinations cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide such a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the Veteran's highly credible assertions, VA examinations were ordered for all of the service connection claims, which took into account his assertions of toxic exposure. Unfortunately, the Veteran decided that he did not want to attend the scheduled examinations in August 2020, due to COVID-19. He then reported in July 2021, that he still did not want to report for VA examinations and wanted to have his claims evaluated based on the evidence of record. See Correspondence dated July 3, 2021. Although the Board recognizes that the Veteran has presented positive evidence regarding his service connection claims, the Board also emphasizes that the Veteran has not provided any competent medical nexus opinions in support of his claims. Here, there is simply no positive competent evidence indicating that the Veteran's eye condition, hypertension, a liver condition, a skin condition, Grave's disease, diabetes, or bilateral upper and lower extremity neuropathy are due to his active-duty service, such that service connection would be warranted. The Board acknowledges the Veteran's sincere belief that his exposure to toxic chemicals has caused his claimed health conditions. The Board also believes that further development could very well warrant the grant of service connection for his claims. It was in recognition of his assertions, that VA examinations were ordered. The Board notes that VA examinations are not intended to develop negative evidence to deny his claims, instead they are provided to assist him in obtaining competent medical evidence to establish his claims. However, as explained, the evidence of record does not contain the medical opinions required to grant his claims. No matter how sincere the Veteran's belief in a claim is, his lay assertions cannot be considered competent medical evidence with respect to nexus in these matters and he cannot provide an etiology opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Until the Veteran provides medical nexus opinions for the service connection claims for an eye condition, hypertension, a liver condition, a skin condition, Grave's disease, diabetes, or bilateral upper and lower extremity neuropathy, service connection cannot be granted. Regarding the claim for a respiratory condition, the Veteran must also show a current diagnosis, in conjunction with a positive nexus opinion. As such, the Board finds that the criteria for service connection have not been met, for any of the service connection claims. (Continued on the next page) Should the Veteran wish to attend VA examinations regarding these service connection claims, or to provide medical nexus opinions from a competent medical professional, the Veteran is invited to file a Supplemental Claim for benefits. Accordingly, service connection for an eye condition, a respiratory condition, hypertension, a liver condition, a skin condition, Grave's disease, diabetes, and bilateral upper and lower extremity neuropathy is denied. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.