Citation Nr: 21077330 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-67 032 DATE: December 29, 2021 ORDER Entitlement to service connection for Type II diabetes mellitus to include as due to herbicide exposure is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a right hand neurological disability is denied. Entitlement to service connection for a left hand neurological disability is denied. Entitlement to service connection for multiple myeloma to include as due to herbicide exposure is denied. Entitlement to service connection for residuals of a stroke is denied. Entitlement to service connection for a respiratory disorder to include asthma with chronic cough is denied. FINDINGS OF FACT 1. The Veteran was not exposed to an herbicide agent, such as Agent Orange, during his active service. 2. Type II diabetes mellitus did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by active service. 3. Hypertension did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by active service. 4. A right hand neurological disability did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by active service. 5. A left hand neurological disability did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by active service. 6. Multiple myeloma did not have onset during active service and was not caused by active service. 7. Residuals of a stroke did not have onset during active service and was not caused by active service. 8. A respiratory disorder diagnosed as right hemidiaphragm paralysis and reactive airway disease did not have onset during active service and was not caused by active service. CONCLUSIONS OF LAW 1. Type II diabetes mellitus was not incurred in or aggravated by service, nor may the disability be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. Hypertension was not incurred in or aggravated by service, nor may the disability be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 3. A right hand neurological disability was not incurred in or aggravated by service, nor may the disability be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 4. A left hand neurological disability was not incurred in or aggravated by service, nor may the disability be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 5. Multiple myeloma was not incurred in or aggravated by service, nor may the disability be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 6. Residuals of a stroke was not incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. § 3.303 (2020). 7. A respiratory disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to August 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in August 2019. A transcript of the hearing has been associated with the claims folder. During the August 2019 Board hearing, the VLJ clarified the issue on appeal; clarified the concept of service connection claims; identified potential evidentiary defects which included a nexus between the Veteran's disabilities on appeal and his service; clarified the type of evidence that would support the Veteran's claim; and enquired as to the existence of potential outstanding records. Thus, the actions of the VLJ comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. In December 2019, the Board remanded the Veteran's claims. The Veteran's claims folder has returned to the Board for further appellate consideration. Service Connection Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic disease, including type II diabetes mellitus, hypertension, and organic disease of the nervous system, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as 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. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. The law provides that "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); 38 C.F.R. § 3.307. For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), "service in the Republic of Vietnam" means that a veteran must have been present within the land borders of Vietnam to obtain the benefit of the presumption of herbicide exposure. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008). Section 3.307(d)(6) provides that 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 period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases listed under 38 C.F.R. § 3.309(e) 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 further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease; 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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Type II diabetes mellitus, hypertension, right hand neurological disability, left hand neurological disability, multiple myeloma, and residuals of a stroke The Veteran contends that he has type II diabetes mellitus, hypertension, a right hand neurological disability, a left hand neurological disability, multiple myeloma, and residuals of a stroke that are related to service. Further, as to the type II diabetes mellitus and multiple myeloma, the Veteran contends that these disabilities are related to exposure to herbicides from performing his duties as an aircraft mechanic during service in Guam. See, e.g., the August 2019 Board hearing transcript, page 3. With regard to the Veteran's assertions as to in-service herbicide exposure, the Board first notes that the Veteran does not assert that he served within the borders of the Republic of Vietnam or Korea, and his service personnel records do not reflect such service. As such, the Board finds he is not entitled to the benefit of the presumption of herbicide exposure. See Haas, 525 F.3d at 1197. Rather, he contends that he served in Guam. With respect to the Veteran's specific assertions regarding exposure, the Board finds the objective evidence of record does not show the Veteran's participation in any use, testing, or storage of tactical herbicides in Guam during his period of service. Crucially, the RO sent the Veteran a letter dated December 2016 informing the Veteran to send evidence regarding his alleged exposure to Agent Orange during service to include an explanation of when, where, and how he was exposed. He was also informed that he could include statements of persons who knew of his exposure. However, the Veteran did not respond to the letter. Indeed, the Veteran has only made a general statement of exposure to herbicides in performing his duties as an aircraft mechanic. He has not provided any date as to his claimed exposure or referenced service members who could verify such exposure. In this regard, the Veteran has an obligation to assist VA in the development of his claims by providing evidence of his alleged exposure to herbicides during service. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."); see Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) [VA's duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim]. Therefore, the probative evidence does not demonstrate that the Veteran was exposed to herbicides during active duty. Additionally, the Veteran's service treatment records do not reflect complaints of, treatment for, or diagnoses of type II diabetes mellitus, hypertension, right hand neurological disability, left hand neurological disability, multiple myeloma, or residuals of a stroke. Indeed, his September 1975 separation examination revealed normal findings with regard to testing related to these disabilities. Rather, the medical evidence does not reflect symptoms associated with any of these disabilities until 2000 when the Veteran was treated for hypertension. See a VA treatment record dated April 2000. This is more than 20 years after the Veteran's discharge from service. This period of time, along with the normal in-service reports, indicates that these disabilities were not manifest during service and the diabetes, hypertension, right hand neurological disability, and left hand neurological disability in particular may not be presumed to have been incurred in service as none of these disabilities manifested within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Furthermore, type II diabetes mellitus, hypertension, and the neurological disabilities of the right and left hands were not "noted" during service and he did not have characteristic manifestations sufficient to identify the disease entity during service or within one year thereof. To the extent that there is an assertion of continuity, such assertion would be inconsistent with the normal separation examination and would not be credible. To the extent that the Veteran contends that his type II diabetes mellitus, hypertension, right hand neurological disability, left hand neurological disability, multiple myeloma, and residuals of stroke are due to service to include exposure to herbicides in service, the Board observes that lay people are competent to testify to visible or otherwise observable symptoms of disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). The Veteran is competent to report that he was diagnosed with type II diabetes mellitus, hypertension, a right hand neurological disability, a left hand neurological disability, multiple myeloma, and residuals of a stroke by a medical professional. However, he has not established his competence to establish etiology (other than Agent Orange exposure) and there are no Jandreau exceptions. To the extent that he asserts that his type II diabetes mellitus, hypertension, a right hand neurological disability, a left hand neurological disability, multiple myeloma, and residuals of a stroke are related to service to include herbicide exposure, the Board has rejected such assertions as not proven and not credible. The lay statements of the Veteran concerning a relationship between his type II diabetes mellitus, hypertension, a right hand neurological disability, a left hand neurological disability, multiple myeloma, and residuals of a stroke and his service are therefore not probative in this regard. In conclusion, considering the lay and medical evidence in this case, the preponderance of the evidence is against the claims for service connection for type II diabetes mellitus, hypertension, a right hand neurological disability, a left hand neurological disability, multiple myeloma, and residuals of a stroke and with the type II diabetes mellitus and multiple myeloma to include as due to herbicide exposure. That is, the Board finds that the Veteran did not have in-service exposure to herbicides. Moreover, type II diabetes mellitus, hypertension, a right hand neurological disability, and a left hand neurological disability did not manifest within the first year after the Veteran's discharge from service, and these disabilities are not otherwise related to his service. Thus, as the preponderance of the evidence is against the claims, the benefit-of-the-doubt standard of proof does not apply and the claims must be denied. 38 U.S.C. § 5107(b). Respiratory disorder The Veteran contends that he has a respiratory disorder to include asthma with chronic cough that is related to service. The Board notes that the Veteran was treated in service in May 1972, November 1972, and June 1973 for coughing which was noted as an upper respiratory infection. He was also treated for chest pain in May and June 1974. The Board also notes that a March 2020 VA examination report documents a finding of right hemidiaphragm paralysis with onset from 2016 as well as reactive airway disease based on testing conducted during the VA examination that was related to GERD/sinus issues. The Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran's right diaphragm paralysis and reactive airway disease are not related to his service. Specifically, the Veteran was provided a VA examination in March 2020. The VA examiner noted the Veteran's in-service treatment discussed above. After examination of the Veteran and consideration of his medical history, the VA examiner determined the Veteran had right diaphragm paralysis and reactive airway disease and concluded that it is less likely than not that the Veteran had a respiratory disorder that was incurred in service. The VA examiner's rationale for their conclusion was based on their finding that while the Veteran had in-service treatment for respiratory symptoms, his September 1975 separation examination revealed a normal respiratory examination and further, the Veteran did not demonstrate chronicity of symptoms following separation from service. The examiner in particular noted a May 1976 examination which revealed a complaint of chest pain but chest X-rays and respiratory examination was normal. The March 2020 VA examiner's opinion was based upon thorough analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, the VA examiner's opinion is consistent with the Veteran's documented medical history, which is absent any report of right diaphragm paralysis or reactive airway disease in-service or for many years thereafter. The examiner also noted the Veteran's in-service respiratory treatment and further noted that such treatment did not cause the current respiratory disorder diagnosed as right diaphragm paralysis and reactive airway disease. The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion that his current respiratory disorder is not related to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107(a) (2012) (it is the claimant's responsibility to support a claim for VA benefits). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). To the extent the Veteran asserts that his current respiratory disorder is related to his service, he is competent to report that he has a current diagnosis (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, his September 1975 separation examination revealed normal pulmonary findings. The Board also finds that the Veteran's statements do not outweigh the opinion of the March 2020 VA examiner who provided a thorough examination of the Veteran, considered his medical history and thereafter indicated that the Veteran's current respiratory disorder is not related to service. Thus, these arguments do not outweigh the specific findings of the VA examiner who is a skilled neutral professional. In short, the more credible and probative evidence establishes that the Veteran's respiratory disorder was not manifest during service and is not otherwise related to service. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a respiratory disorder to include asthma with chronic cough. The evidence is not in approximate balance. The benefit sought on appeal is accordingly denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.