Citation Nr: 21076505 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-27 836 DATE: December 27, 2021 ORDER Entitlement to service connection for a neck disorder is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to herbicide exposure is denied. Entitlement to service connection for a throat disorder, to include as due to herbicide exposure is denied. FINDINGS OF FACT 1. The Veteran does not have a neck disorder that was incurred during or as a result of service and did not manifest to a compensable degree within a year of discharge from service. 2. The Veteran's GERD is not etiologically related to service, including to his exposure to herbicides. 3. The Veteran does not have a throat disorder that was incurred during or as a result of service, including as related to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neck disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for GERD, including as related to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a throat disorder, including as related to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1967 to April 1969. Service Connection Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain specific diseases, specified in 38 C.F.R. § 3.309, may be established on a presumptive basis by showing that such a disease manifested itself to a compensable degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). A chronic condition may also be found to be service connected if symptoms were noted in service and there exists a continuity of symptomatology since service that is attributable to the chronic disease. 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (U.S. 1997). Of the Veteran's conditions currently before the Board, only arthritis is one of the "chronic diseases" listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provision of 38 C.F.R. §§ 3.303(b) and 3.307(a) do not apply to the claims related to GERD or a throat condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for specific diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). A Veteran who, during active military, naval, or air 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 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met despite any lack of evidence of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. However, although exposure to herbicides was conceded in a November 2020 memorandum, the Veteran's claimed disorders are not enumerated in that section and not subject to presumptive service connection. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). A claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the Veteran can still prevail on his claims if he can establish a direct connection between his claimed conditions and his military service, to include exposure to an herbicidal agent. 38 C.F.R. § 3.303 (d) (Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.). Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, without specialized medical training a lay witness is not competent to either diagnose or make a nexus opinion concerning most medical conditions. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a neck disorder The Veteran contends that his neck disorder is related to service. He asserts that while in service, he ran into a barbed wire fence in the dark resulting in a severe cut to his nose, which was subsequently service-connected. He indicated he also suffered a "whip-lash" injury to his neck for which he could not seek treatment, as he was focused on his nose injury. In this regard, shortly after the Veteran separated from service, he was afforded a July 1969 VA examination in which he reported he ran into a barbed wire fence lacerating his nose. The Board notes post-service treatment records also show that the Veteran underwent a cervical diskectomy in January 2004. An April 2012 treatment record showed a normal range of motion of the neck and a supple neck. The Veteran was afforded a December 2019 VA examination in which he was diagnosed with spinal spondylosis from approximately 2003. The examiner found the neck condition is not associated with service. He indicated there is no current documented medical evidence that the Veteran experienced a neck injury, symptoms, evaluations or treatment while in service. The examiner opined that there is no nexus between the current neck diagnosis and the Veteran's experiences in service. The Veteran was afforded a VA examination and opinion regarding his neck disorder in August 2021. The examiner noted a diagnoses of degenerative disc disease, rheumatoid arthritis, cervical spine decompression and fusion, and spondylotic change C4-5 and C5-6. The examiner opined that the Veteran's neck disorder were less likely than not incurred in or caused by service. She provided the following assessment and rationale for the opinion: "There are no records documenting complaints, diagnosis, or treatment for a neck condition through 2011. The Veteran, while competent, is not a reliable/believable historian regarding a neck injury in 1969, when the veteran sustained a superficial nose laceration when he encountered a barbed wire while on patrol at night. The nose laceration was sutured with a resultant scar which is consistent with the current exam. No neck injury was noted then or since." The examiner further noted that the Veteran's post-service records document he undertook demanding physical labor since separation from military service in 1969, including construction, crane operation, and building silos for many years. She opined that a neck condition that would have begun during and continued after service would have impaired or precluded these types of occupations and there are no records of work limitations due to a neck condition. The examiner noted that a treatment note is void of cervical spine complaints, whilst noting the Veteran's rheumatoid arthritis related joint complaints: "Exercise: He tries to get some, but it is very painful. His right hip has been bothering him and also his left foot. Rates general health as good other than his rheumatoid arthritis. No longer has any numbness or tingling. He had it in left arm, but his spinal fusion resolved that. He has multiple deformities of his hands. They are rather stiff and the fingers are knotted up." She concluded that the current medical condition is most likely related to the Veteran's noted and widely documented severe rheumatoid arthritis rather than an in-service event. A Neurosurgery note pertaining to the neck from January 2004 shows a history and assessment of: "Symptoms have been present since June and not associated with any particular injury. 55-year-old right-handed gentleman with severe rheumatoid arthritis, having been disabled since 1991. He is presenting today with complaints of a constant left-sided neck pain with frequent numbness involving the left arm and hand, especially the first 4 digits associated with atrophy and weakness in the left shoulder and biceps muscles." Finally, the examiner stated that the medical literature supports cervical spine involvement in a time-progressive fashion in rheumatoid arthritis, as it is well known that rheumatoid arthritis, a systemic chronic inflammatory disorder, compromises the cervical spine in up to 80 percent of the cases. Upon review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim. Arthritis is a disorder entitled to presumptive service connection; however, as it did not develop to a compensable degree within one year of discharge from service, service connection may not be granted on a presumptive basis. Regarding direct service connection, although he has diagnoses of multiple neck disorders, the evidence does not show an etiology between his neck disorders and service. There is no record of this condition at any time during his military service. The Veteran contends that he injured his neck when he injured his nose, but the record does not show a neck injury or symptoms until long after his discharge from service. The Board has considered the Veteran's lay statements and finds him competent to provide testimony concerning those facts for which he has personal knowledge or experience. However, the Board finds that the establishment of a nexus between his current neck disorder and his military service is a complex issue which requires an opinion from a trained medical professional. The Veteran has not been shown to have the required medical training to render a competent opinion on this issue and there are no competent medical opinions which relate his current condition to his military service. Conversely, the VA examiner reviewed the claims file, including the post-service employment and treatment records showing that his neck disorder was more likely related to his rheumatoid arthritis than any incident of service. Therefore, the Board finds the opinion of the VA examiner to be more probative than the Veteran's lay statements regarding etiology. In reaching these conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, and doctrine is not applicable. The claim for service connection for a neck disorder is denied. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to herbicide exposure The Veteran contends that his GERD is related to service, to include his exposure to herbicides in Vietnam. In the December 2014 notice of disagreement (NOD), he stated he was sprayed with defoliant on numerous occasions. He reported he sought treatment from an aid station in service due to symptoms of acid reflux and was given Tums. The claim came before the Board in February 2019 and was remanded for further development, including a VA examination to determine the etiology of the Veteran's GERD. The Veteran was afforded a VA examination in December 2019 in which he was diagnosed with GERD from approximately 2003. The examiner opined the Veteran's GERD is not related to service. He indicated there is no documented medical evidence of heartburn or GERD conditions in service. In the July 2021 Board remand, the Board found this opinion to be inadequate. The Veteran underwent a VA examination in August 2021. The examiner diagnosed gastroesophageal reflux disease (GERD) and opined that his GERD is less likely than not related to military service and/or herbicide/Agent Orange exposure during service. The examiner provided the following rationale: "There is no evidence that GERD is caused by herbicide exposure. The veteran's GERD. is most likely related to the chronic use of medications for his diagnosis of rheumatoid arthritis. Gastrointestinal upset with the chronic use of prednisone is well established in the medical literature. Thus, a nexus is negative." Upon review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim. Although he has a diagnosis of GERD, the evidence does not show an etiology between his GERD and service. There is no record of this condition at any time during his military service. The Veteran has contended that his GERD is secondary to his exposure to herbicides; however, it is not a condition entitled to presumptive service connection and the VA examiner has opined that the medical literature does not support an etiology between the two. Additionally, the VA examiner opined that the Veteran's GERD is more likely due to his medication for rheumatoid arthritis. The Board has considered the Veteran's lay statements and finds him competent to provide testimony concerning those facts for which he has personal knowledge or experience. However, the Board finds that the establishment of a nexus between his current GERD condition and his military service is a complex issue which requires an opinion from a trained medical professional. The Veteran has not been shown to have the required medical training to render a competent opinion on this issue and there are no competent medical opinions which relate his current condition to his military service. Therefore, the Board finds the opinion of the VA examiner to be more probative than the Veteran's lay statements regarding etiology. In reaching these conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, and doctrine is not applicable. The claim for service connection for GERD, including as related to herbicide exposure, is denied. 3. Entitlement to service connection for a throat disorder, to include as due to herbicide exposure The Veteran contends that he has a throat disorder which is related to service, to include his herbicide exposure. The Board notes a service treatment record dated March 1969 documented that the Veteran had a sore throat and cough. In the Veteran's February 2014 claim, he asserted that he has a throat condition which is related to his service in Vietnam. He stated he was a member of a Navy construction unit and that planes sprayed defoliant on his unit. He reported he remembers the taste and smell of the defoliant that fell on him. He stated he has constant irritation in his throat and that his treatment includes taking over the counter medication. In the December 2014 NOD, the Veteran also reported suffering from chronic throat irritation. The Veteran was afforded a VA examination for his throat in August 2021. The examiner found no diagnosis of a sinus, nose, throat, larynx, or pharynx condition. The examiner performed a clinical examination and concluded "There is no objective evidence on current exam of a sinusitis or rhinitis condition. Veteran sustained a 2.5 x 0.3 cm laceration on the bridge of his nose in service. No diagnoses are warranted for the claimed throat disorder on this DBQ at this time." The examiner also opined that "the current throat disorder is related to GERD." In September 2021, the VA examiner issued an addendum VA opinion addressing the March 1969 service treatment record documenting that the Veteran had a sore throat and cough. The examiner stated that "The sore throat and cough are unrelated as these are symptoms of an upper respiratory condition rather than an injury. Subsequent evaluations are negative for these findings, including 09/29/2005 evaluation noting: 'Throat: Denies frequent sore throats or difficulty swallowing' thus the in service condition is presumed resolved. Nexus is negative." Upon review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim. The VA examiner found no evidence of a throat disorder and no diagnosis of a throat disorder is shown in the treatment records. Without evidence of a disability, service connection cannot be granted. To the extent that the Veteran has claimed that he has symptoms of a sore throat as a result of exposure to herbicides, the Board has considered the Veteran's lay statements and finds him competent to provide testimony concerning those facts for which he has personal knowledge or experience. However, the Board finds that the diagnosis and nexus between a throat disorder and his military service are complex issues which require an opinion from a trained medical professional. The Veteran has not been shown to have the required medical training to render a competent opinion on this issue and there are no competent medical opinions which diagnosis a current disorder and relate it to his military service. Therefore, the Board finds the opinion of the VA examiner to be more probative than the Veteran's lay statements regarding diagnosis and etiology. In reaching these conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, and doctrine is not applicable. The claim for service connection for a throat disorder, including as related to herbicide exposure, is denied. (Continued on the next page) T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shana Z. Siesser, 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.