Citation Nr: 21007231 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-06 091 DATE: February 9, 2021 ORDER Entitlement to service connection for a jaw disability is denied. REMANDED Entitlement to service connection for atrial fibrillation is remanded is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT The competent and credible evidence shows that the Veteran does not currently have a jaw disability. CONCLUSION OF LAW The criteria for service connection for a jaw disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board remanded this case in March 2019 for further development. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for a jaw disability is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The first requirement for any service connection claim is evidence of a disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Based on a careful review of the subjective and clinical evidence, the preponderance of the evidence weighs against the claim for service connection for a jaw disability. While the Veteran asserted in a December 2012 informal claim that he had fallen from an electrical post during active service and injured his jaw, post-service treatment records do not show complaints of, treatment for, or a diagnosis of a jaw disability. As such, the medical evidence does not demonstrate that the Veteran has a current diagnosis of asbestosis. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran is certainly competent to report his in-service injury and subjective symptoms of a jaw disability, but he is not competent to provide a diagnosis of an underlying disability for such symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not presented any competent and credible evidence of a current diagnosis for a jaw disability and the available evidence does not support that the Veteran has any current persistent symptomatology that would suggest that he has a jaw disability. In fact, the Veteran has not reported any subjective symptoms of a jaw disability. Thus, the claim for service connection for a jaw disability is denied. Further, the Veteran’s representative contended in an October 2020 appellate brief that VA should provide an examination for the Veteran’s jaw disability. However, the Board finds that a VA examination under the standards of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) is not warranted in this case. The evidence does not show that the Veteran has a current jaw disability. In fact, as noted above, the Veteran has not reported any subjective symptoms of a jaw disability. Thus, the Board finds that the duty to assist is not invoked, even under McLendon, as here the evidence fails the McLendon analysis for these claims. A mere conclusory generalized statement that a service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (discussing the circumstances when a VA examination and opinion are required). In summary, the Board finds that the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for a jaw disability. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for atrial fibrillation is remanded is remanded. 2. Entitlement to service connection for hypertension is remanded. Military personnel records show that the Veteran served in the Republic of Vietnam during his active duty service. Thus, exposure to Agent Orange is presumed. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Atrial fibrillation and hypertension are not included the list of presumptive diseases under 38 C.F.R. § 3.309 (e) regarding herbicide agent. However, notwithstanding the presumptions, service connection for a disability claimed as due to herbicide exposure during the Vietnam War may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). The VA examinations of record did not address whether the Veteran’s atrial fibrillation and/or hypertension was due to his in-service exposure to Agent Orange. As such, a remand is warranted. Additionally, the November 2019 and March 2020 VA examination opinions that the Veteran’s atrial fibrillation and hypertension were less likely than not due to or aggravated by his service-connected diabetes mellitus are inadequate as they were not supported by well-reasoned rationale. As such, a remand is warranted. The matters are REMANDED for the following action: Obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran’s atrial fibrillation and hypertension. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. The examiner should address the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s atrial fibrillation and/or hypertension is related to his military service, to include his presumed in-service exposure to Agent Orange? The examiner is advised that although atrial fibrillation and hypertension are not presumptively linked to Agent Orange, they still in fact be causally linked to such exposure. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s atrial fibrillation and/or hypertension is caused or aggravated by the Veteran’s service-connected disabilities, to include his diabetes mellitus, type II? A complete rationale for any opinion expressed must be provided. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.