Citation Nr: 21013561 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-06 421 DATE: March 9, 2021 ORDER Entitlement to service connection for respiratory disability is denied. Entitlement to service connection for disability manifested by memory loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence does not reflect that the Veteran’s respiratory disability had its onset in service or is otherwise related to service. 2. The preponderance of the evidence does not reflect that the Veteran’s disability manifested by memory loss had its onset in service, is otherwise related to service, or is caused or aggravated by service-connected depressive disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for respiratory disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for disability manifested by memory loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to October 1969. These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied service connection for bronchitis and memory loss. The Veteran testified before the undersigned Veterans Law Judge in June 2019. A transcript of that hearing is of record. In August 2019, the matters were remanded by the Board for further development. The Agency of Original Jurisdiction (AOJ) has substantially complied with the Board’s remand instructions by, as demonstrated by the discussion below, obtaining VA opinions that are adequate to decide the claims. Thus, no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air 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 injury or disease; and (3) a relationship between the two.  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 the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Entitlement to service connection for respiratory disability The Veteran contends his respiratory disability is related to hazardous environmental exposure during service, such as gun powder, asbestos, and mustard gas. He also contends he was exposed to herbicide agents while serving in Vietnam aboard the USS Weeks and during his tour in Southeast Asia from March to September 1969. Specifically, the Veteran reported in a December 2011 statement that the USS Weeks was a supply ship that was docked in Da Nang harbor on multiple occasions, took on fresh water at Da Nang, and also refueled along the coast of Vietnam. He also noted he spent time on deck cleaning and assisting with manual labor. There are certain diseases on the list of those presumed service-connected in Veterans exposed to herbicide agents, however, respiratory disability, other than respiratory cancer, is not one of them. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). However, the absence of diseases on the list of those presumed service-connected in veterans exposed to herbicide agents does not preclude a veteran from alleging that the non-presumptive diseases with which he has been diagnosed are related to herbicide agent exposure. 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). In October 2019, a VA examiner found that it was less likely than not the Veteran’s respiratory disability had its onset in or was related to service. There was no documentation or evidence that indicated or supported a diagnosis of asthma or any chronic respiratory condition while in service or immediately after service. Medical records indicated that the Veteran was diagnosed with asthma around 2016. Asthma is not a presumptive condition and is due to a combination of environmental and genetic (inherited) factors. There was no evidence that suggested a positive relationship between asthma and exposure to herbicide agents. Therefore, it would not be related to herbicide agent exposure. In November 2020, a VA physician diagnosed the Veteran with restrictive lung disease and found that the Veteran did not have asthma as asthma is defined as an obstructive ventilatory defect that improves significantly with bronchodilator, and there was no improvement in any of the Veteran’s pulmonary function test (PFT) findings after use of a bronchodilator. The Veteran was first prescribed an Albuterol inhaler in 2010, and prior to that time there was no evidence of pulmonary complaints. The next time the inhaler was prescribed was in 2016. The PFTs established that the Veteran did not have asthma, so a discussion of the interaction between environmental and genetic factors in the genesis of asthma was unnecessary. Moreover, the likelihood of a significant exposure to Agent Orange, gunpowder, asbestos, and mustard gas was remote in the extreme for a cook on board a naval vessel. Therefore, it was less likely than not that Veteran’s current respiratory condition had its onset in service. It was also less likely than not that his current respiratory condition is otherwise related to any in-service event, condition, or exposure, including the potential for environmental exposures of Agent Orange, gunpowder, asbestos, and mustard gas. The Veteran did not indicate that he had treatment for, symptoms of, or a diagnosis of respiratory disability in the years between service and his post-service diagnosis, and he did not relay a diagnosis of respiratory disability during those years. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). For the following reasons, entitlement to service connection for respiratory disability is not warranted. The November 2020 VA examiner noted the Veteran’s diagnosis of restrictive lung disease. Thus, the Veteran meets the current disability requirement. The Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act) extends the presumption of exposure to herbicide agents to those veterans who served in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. The BWN Act codified the holding of Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), that “Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to § 1116’s presumption if they meet the section’s other requirements. They are”). See VAOPGCPREC 3-2019 (Dec. 13, 2019), at 2 (“The BWN Act codified the Procopio holding”). Moreover, Congress also intended the BWN Act to “ensure that VA defines ‘the Republic of Vietnam’ broadly.” Id. at 12 (citing H.R. Rep.116-58, at 11 (May 10, 2019)). The Veteran’s military personnel record confirms that he served aboard the USS Weeks during the period of March 1969 to September 1969. Further, the Veteran’s DD Form 214 reflects that he was awarded the Vietnam Service Medal. In response to a June 2009 Request for Information record, the Joint Services Records Research Center indicated the USS John W. Weeks did not operate in inland waters or rivers of the Republic of Vietnam, but confirmed that the Veteran served aboard the USS John W. Weeks, which was in the official waters of the Republic of Vietnam from March 3, 1969 to March 21, 1969, April 1, 1969 to April 18, 1969, and June 18, 1969 to July 13, 1969. In a relevant advisory opinion, VA’s General Counsel noted that, although VA could promulgate a regulation requiring specific types of evidence supporting a veteran’s bare assertion that his or her ship entered the territorial sea of Vietnam, “VA is required to consider ‘all information and lay and medical evidence of record in a case,’ so VA can never limit its inquiry to the point of precluding the full and fair consideration of lay evidence on all matters that lay evidence is capable of establishing.” VAOPGCADVIS 1-19 (Mar. 29, 2019), at 2 (quoting 38 U.S.C. § 5107(b)). Moreover, while VA could promulgate regulations delineating when lay evidence could establish presence within the territorial sea of Vietnam and when it could not, “any such rule or policy could not preempt existing laws governing the consideration of evidence in VA benefits cases.” Id. at 3. Thus, even if VA compiled a list of ships that were in the territorial waters of Vietnam or promulgated a corroboration requirement, the Board would still have to consider “all information and lay and medical evidence of record.” Id. (citing 38 U.S.C. § 5107(b)). In doing so, the Board would have to consider that if a reasonable doubt arises as to “any... point” within the claim, including as to the question of a veteran’s service within the territorial sea of Vietnam, it would have to resolve this reasonable doubt in favor of the claimant. Id. (citing 38 C.F.R. § 3.102). Moreover, it is error for the Board not to consider lay evidence regarding service in Vietnam and herbicide agent exposure. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in additional to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). The NPRC finding that the ship the Veteran was in the official waters of Vietnam is not enough by itself to indicate that the Veteran served within the 12-mile area indicated by 38 U.S.C. § 1116A(d). However, when this fact is combined with the Veteran’s lay statements that the ship was very close to shore and the other facts noted above, including the places, types, and circumstances of service, the evidence is at least evenly balanced as to whether the Veteran served offshore of the Republic of Vietnam as that term is defined in 38 U.S.C. § 1116A. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that he served offshore Vietnam and was exposed to herbicide agents. 38 C.F.R. § 3.102 (the benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition). Thus, the Veteran meets the in-service injury or disease requirement. With regard to the Veteran’s claim he was exposed to asbestos in service, there is no specific statutory guidance with regard to asbestos-related claims, nor has VA promulgated any regulations in regard to such claims. With respect to claims involving asbestos exposure, VA must determine whether the Veteran’s military records demonstrate evidence of asbestos exposure during service, whether there was pre-service and/or post-service occupational or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. The Veteran’s military personnel records confirm that he served as a ship’s cook during his service in the U.S. Navy. As the Veteran’s military occupational specialty is of the type with a minimal probability of exposure to asbestos, the Board finds that the Veteran was not exposed to asbestos during active duty. As to nexus, the Veteran’s service treatment records do not contain any notations relating to symptoms, treatment, or a diagnosis relating to respiratory disability. His September 1969 Report of Medical Examination indicated his lungs and chest were normal. Post-service records reveal no treatment or diagnosis for respiratory disability until approximately 1995, 26 years after separation from active duty, when the Veteran was diagnosed with asthma. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, is one factor, along with those above, including the normal Report of Medical Examination with regard to the chest and lungs and lack of notations relating to symptoms, treatment, or diagnosis relating to respiratory disability in the Veteran’s service treatment records, as well as lack of statements indicating continuity of symptomatology, that can be considered as evidence against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).    The October 2019 VA opinion is not probative as it based on an inaccurate factual premise. Specifically, the VA examiner stated that the Veteran’s asthma was diagnosed in 2016, when it was first diagnosed in 1995. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). In the November 2020 VA opinion, the VA physician found it was less likely than not that Veteran’s current respiratory condition had its onset in service, and it was less likely than not that his current respiratory condition is otherwise related to any in-service event, condition, or exposure, including environmental exposures of herbicide agents, gunpowder, asbestos, and mustard gas. While the VA examiner’s rationale is not extensive, the opinion is based on an analysis of the evidence of record, which was accurately recorded, and is therefore entitled to some probative weight. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). To the extent that the Veteran’s lay statements suggest a relationship between his current respiratory disability and service, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent. Jandreau, 492 F.3d at 1376, 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”).    For the foregoing reasons, the preponderance of the evidence is against finding that the Veteran’s respiratory disability had its onset in service or is related to service. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Entitlement to service connection for disability manifested by memory loss The Veteran contends that he experiences significant memory loss issues that are related to service, or in the alternative, are caused or aggravated by his service-connected depressive disorder. In December 2020, a VA psychologist indicated that the Veteran underwent a small battery of neuropsychological testing in November 2014. She found of note that no performance validity measures were used during this testing, rendering the results of unknown validity. It was not conducted by a neuropsychologist, but by a psychology intern supervised by a psychologist who was not a neuropsychologist. The December 2020 psychologist found the Veteran’s description of memory problems on November 2014 inconsistent, and the problems described were not unusual for most individuals, like getting lost while driving. However, during the interview, the Veteran denied difficulty driving when not on the highway. The Veteran also endorsed short-term memory difficulties that come and go and reported frequently losing items and engaging in frantic searches at home for these lost items. He additionally indicated he forgot the names of family and friends, but would eventually remember them if he continued to think about them. He denied forgetting the names of close family, although he got mixed up on birthdays and little things like that. The Veteran’s November 2014 performance indicated some moderate difficulties with verbal memory. He also failed to complete a measure that was closely linked with the type of task-switching and alternating attention required for driving. His performance indicated an adequate ability to attend to information with possible difficulties when the presented information was detailed in nature. The Veteran’s performance in the high average range on measures of verbal ability was likely to prevent others from immediately recognizing difficulties in everyday conversation due to his strong performance in this area, and his performance indicated a significant decline from his report of previous functioning. His depression appeared to be well-controlled at this time and was not likely to interfere with cognition. Diagnostically, the observed impairments did not seem consistent with a specific type of dementia, meaning, the testing could not say with certainty what might have been causing the memory declines. The December 2020 VA psychologist found that, during an October 2019 VA examination, the Veteran’s mild memory problems were evident, but were not clinically significant. That is, the Veteran described or evidenced mild symptoms that were within normal limits for most individuals. The examination stated that the Veteran showed an inability to recall the name of a company he worked for. These memory lapses were mild and not of the clinical significance that warranted checking any of the memory items on the symptom checklist on the disability benefits questionnaire. The Veteran was mildly distractible (not to the point of any disorder), and this distractibility might have led to the subjective perception of memory loss or memory problems, as opposed to actual memory loss or a cognitive disorder. The December 2020 VA psychologist ultimately found it was not well-established that the Veteran has a cognitive disorder or memory loss. The testing that was conducted in November 2014 was inadequate to establish a definitive diagnosis of a cognitive disorder because no performance validity measures were used during this testing. Thus, it is not clear that the Veteran has any memory or cognitive problems that are outside of the normal limits for what most individuals experience. In any case, any such problems that may exist are not related to the service-connected depressive disorder as the Veteran did not have clinically significant symptoms of depression at the October 2019 VA examination, nor were clinically significant symptoms of depression documented at the November 2014 testing. Finally, the VA psychologist noted that the Veteran has no service-connected conditions that would cause memory problems, if such memory problems exist. In addition, any treatment for his service-connected conditions (tinnitus, degenerative arthritis, impaired hearing, burns) would not cause memory or cognitive problems. The Veteran did not indicate that he had treatment for, symptoms of, or a diagnosis of memory loss or a cognitive disorder in the years between service and his post-service diagnosis, and he did not relay a diagnosis of memory loss or a cognitive disorder during those years. See Jandreau, 492 F.3d at 1377. For the following reasons, entitlement to service connection for disability manifested by memory loss is not warranted. The Veteran’s service treatment records do not contain any notations relating to symptoms, treatment, or diagnosis relating to memory loss. His September 1969 Report of Medical Examination indicated his psychiatric and neurologic evaluations were normal. Post-service records reveal no treatment or diagnosis for memory loss until 2014, approximately 45 years after separation from active duty. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, is one factor, along with those above, including the normal Report of Medical Examination with regard to the psychiatric and neurologic evaluations and lack of notations relating to symptoms, treatment, or diagnosis relating to memory loss in the Veteran’s service treatment records, as well as lack of statements indicating continuity of symptomatology, that can be considered as evidence against the claim.  Maxson, 230 F.3d at 1333.    In the December 2020 VA opinion, the VA psychologist found that it is not clear that the Veteran has any memory or cognitive problems that are outside of the normal limits for what most individuals experience. In any case, any such problems that may exist are not related to the service-connected depressive disorder as the Veteran did not have clinically significant symptoms of depression at the October 2019 VA examination, nor were clinically significant symptoms of depression documented at the November 2014 testing. Finally, the VA psychologist noted that the Veteran has no service-connected conditions that would cause memory problems, if such memory problems exist. In addition, any treatment for his service-connected conditions (tinnitus, degenerative arthritis, impaired hearing, burns) would not cause memory or cognitive problems. Reading the opinion as a whole and in the context of the evidence of record, it indicates the examiner is saying that the Veteran seems not to have any unusual memory issues but to the extent he does they are not caused or aggravated by his service-connected depressive disorder. Acevedo, 25 Vet. App. at 294 (medical reports must be read as a whole and in the context of the evidence of record). As the VA psychologist explained the reasons for these conclusions based on an accurate characterization of the evidence, the opinion is entitled to some probative weight.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).  To the extent that the Veteran’s lay statements suggest a relationship between his memory loss and service or his service-connected depressive disorder, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent. Jandreau, 492 F.3d at 1376, n.4. For the foregoing reasons, the preponderance of the evidence is against finding that disability manifested by memory loss had its onset in service, is related to service, or is caused or aggravated by service-connected depressive disorder. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.