Citation Nr: 21010003 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 190315-4433 DATE: February 23, 2021 ORDER Service connection for Barrett’s esophagus, to include as due to exposure to herbicide agents, is denied. Service connection for gastroesophageal reflux disease (GERD), to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. Barrett’s esophagus and GERD are not among the diseases that are presumed to be associated with exposure to herbicide agents. 2. The competent and probative evidence of record preponderates against a finding that the Veteran’s Barrett’s esophagus is etiologically related to active service, including his claimed exposure to herbicide agents therein. 3. The competent and probative evidence of record preponderates against a finding that the Veteran’s GERD is etiologically related to active service, including his claimed exposure to herbicide agents therein. CONCLUSIONS OF LAW 1. The criteria for service connection for Barrett’s esophagus, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for GERD, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1965 to December 1968. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program. This decision has been written consistent with the new AMA framework. The record shows that in December 2018, the Veteran selected the supplemental claim review lane when he submitted a Rapid Appeals Modernization Program (RAMP) election form. A January 2019 RAMP rating decision considered the evidence of record at the time of that decision. The Veteran timely appealed the RAMP rating decision to the Board and requested direct docket review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Although the Board issued a decision in September 2019 regarding other issues on appeal, the Board stayed the adjudication of the aforementioned issues as they were potentially affected by the Blue Water Navy Vietnam Veterans Act of 2019 (the Act). Because the stay has since been lifted, adjudication of these issues is resumed herein. Service Connection 1. Entitlement to service connection for Barrett’s esophagus and GERD, to include as due to exposure to herbicide agents. The Veteran contends his Barrett’s esophagus and GERD are a result of exposure to herbicide agents during service. He contends he was exposed to Agent Orange because he served during the Vietnam War, aboard the U.S.S. Gallant, which reportedly patrolled coastal and inland waterways of Vietnam “searching junks for arms and supplies”. He also reported being docked at a pier in South Vietnam while aboard the U.S.S. Gallant. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran who 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 to herbicide agents, unless there is affirmative evidence to the contrary. The phrase "service in the Republic of Vietnam" in 38 U.S.C. § 1116 includes the 12 nautical mile territorial sea of the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc). As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area. Certain diseases, but not Barrett’s esophagus or GERD, may be service connected if the Veteran was exposed to an herbicide agent during active service even though there is no record of such disease during service, provided that the requirements of 38 C.F.R. § 3.307(a)(6) are satisfied. 38 C.F.R. § 3.309(e). After review of the record, the Board finds that the preponderance of the evidence is against the grant of service connection for Barrett’s esophagus and GERD. A VA treatment record dated in December 2016, shows that the Veteran’s medical problem list includes esophageal reflux and Barrett’s esophagus; thus, he arguably has current disabilities. Service personnel records confirm that the Veteran served aboard the U.S.S. Gallant from May 1965 through December 1968. In support of the claim, the Veteran submitted an excerpt from the U.S.S. Gallant’s cruise book, which indicates that in August 1965 the ship conducted 3 patrols off the coast of Vietnam, totalling 105 days. Based on this information, it appears the U.S.S. Gallant may have served within 12 nautical miles of the shore of the Republic of Vietnam. However, even if the ship’s location was verified has having been within 12 nautical miles of the Republic of Vietnam and/or the Veteran’s exposure to herbicide agents was conceded, Barrett’s esophagus and GERD are not on the list of diseases subject to presumptive service connection. With regard to service connection on a direct basis, the Veteran's service treatment records do not contain any complaints or findings related to Barrett’s esophagus or GERD, nor do post-service treatment records show that either disorder was manifested within the first post-service year. Rather, the record shows that it was apparently many years after separation from service that Barrett’s esophagus and GERD were first diagnosed. Importantly, it is not the Veteran's contention that his Barrett’s esophagus and GERD are directly related to his service, rather, he contends they are due to herbicide agents exposure in service. There is, however, no competent evidence linking either Barrett’s esophagus or GERD to the Veteran's active service, to include his claimed herbicide agents exposure therein. Without the benefit of the presumptive provisions, the Veteran must submit competent evidence establishing a connection between herbicide agents exposure in service and Barrett’s esophagus and GERD. There is, however, no such competent evidence of record. While VA treatment records note he has such disabilities, these records do not indicate that any such disabilities are related to active service, to include herbicide agents exposure therein. What is missing from the record is competent (to include medical) evidence of a link between Barrett’s esophagus and/or GERD and service, to include herbicide agents exposure therein. The Board recognizes the Veteran has not been scheduled for a VA examination to determine whether his Barrett’s esophagus and/or GERD may be related to service. However, a VA examination is not required in this case because although there is competent medical evidence of current disabilities, the record does not contain competent evidence indicating Barrett’s esophagus and/or GERD may be related to service or to herbicide agents exposure therein. The only evidence supportive of such a connection is from the Veteran, himself, and these assertions of a relationship between Barrett’s esophagus, GERD, and herbicide agents have been non-specific. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (recognizing that there is not a duty to provide an examination in every case). The Board acknowledges the Veteran contends his Barrett’s esophagus and GERD are related to herbicide agents exposure in service. While his reports of symptoms are considered credible lay evidence, these statements are not considered competent or probative evidence of an actual diagnosis and/or of any causal nexus to service or herbicide agents exposure, because the Veteran is not competent, as a layperson, to provide an opinion or evidence as to matters involving medical diagnosis or etiology. Kahana v. Shinseki, 24. Vet. App. 428 (2011). Based on the foregoing, the claims for service connection for Barrett’s esophagus and for GERD. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine, however, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.