Citation Nr: 21077446 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-09 865 DATE: December 29, 2021 ORDER Entitlement to service connection for Alzheimer's disease is denied. FINDING OF FACT The Veteran's Alzheimer's disease did not manifest in service or for many years thereafter, and the evidence does not show that his current Alzheimer's disease is related to or may be associated with service, to include exposure to herbicide agents (Agent orange) therein. CONCLUSION OF LAW The criteria for entitlement to service connection for Alzheimer's disease have not been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to October 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied entitlement to service connection for Alzheimer's disease. In June 2015 the Veteran filed a notice of disagreement (NOD) and in January 2018 the RO issued a statement of the case (SOC). In February 2018 the Veteran filed a substantive appeal (via VA Form 9). Alzheimer's disease A Veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service "in the Republic of Vietnam" includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A(a). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). However, while some diseases are among the listed disabilities under 38 U.S.C. § 1116(a)(2); 3.309(e), Alzheimer's disease is not. Thus, the presumption afforded under this provision cannot provide a basis for a grant of service connection in this case. Nevertheless, consideration of whether a grant of service connection on a direct basis is warranted, is still necessary in this case. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). An August 2019 VA examiner noted that the Veteran was diagnosed with Alzheimer's visual variant dating back to 2012. Thus, a current disability has been demonstrated. Service treatment records (STRs) do not show that the Veteran sought treatment or reported Alzheimer's disease or any associated symptoms in service. Nevertheless, the Veteran contends that his Alzheimer's disease was due to exposure due to Agent Orange. The Veteran's military personnel records confirm that he was assigned to a temporary additional duty in Saigon on or about August 19, 1971. Therefore, the Veteran is presumed to have been exposed to herbicide agents and he has met the in-service disease or injury requirement. In February 2018 the Veteran submitted an abstract to an article titled 'Military risk factors for cognitive decline, dementia and Alzheimer's disease' which noted that exposure to Agent Orange "may also influence risk for Alzheimer's disease." An August 2019 VA examiner opined that the Veteran's Alzheimer's disease was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner referenced the 'Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides (Ninth Biennial Update); Board on the Health of Select Populations; Institute of Medicine,' which concluded that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the COIs and neurobehavioral (cognitive or neuro psychiatric disorders). The VA examiner explained that current medical literature on Veterans and Agent Orange neurological disorders does not support an association between exposure to Agent Orange and an onset of Alzheimer's disease. The VA examiner acknowledged the article submitted by the Veteran and noted it was a general opinion that offered a speculative correlation without any supporting scientific evidence. As the August 2019 VA examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record, her opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, there is no contrary medical opinion in the evidence of record. Although the Veteran submitted general medical literature indicating an association between Alzheimer's disease and Agent Orange exposure, the reasoned medical opinion specifically addressed this literature and explained why it was not sufficient to warrant the conclusion that the Veteran's Alzheimer's disease is related to his Agent Orange exposure. Thus, the opinion is of greater probative weight than the general medical literature. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (noting that treatise materials generally are not specific enough to show nexus); Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions directed at specific patients generally are more probative than medical treatises). The Veteran's statements may be competent on a variety of matters concerning the nature and cause of disability. However, the dispositive question presented in this case (i.e., whether any relationship exists between the Veteran's current Alzheimer's disease and his exposure to Agent Orange in service) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372 at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). An opinion as to whether there is a link between the Veteran's current Alzheimer's disease and service, where there is no evidence of any Alzheimer's related problems for many years after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience and his opinion on the question of nexus is therefore not competent. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for the Veteran's Alzheimer's disease is warranted. Rather, the evidence persuasively weighs against an association between the Veteran's Alzheimer's disease and his active duty service. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102, is therefore not for application as to this claim. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.