Citation Nr: 21013983 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-45 059 DATE: March 11, 2021 ORDER Entitlement to service connection for coronary artery disease as a result of exposure to herbicides, to include Agent Orange, is denied. Entitlement to service connection for Parkinson’s disease as a result of exposure to herbicides, to include Agent Orange, is denied. FINDINGS OF FACT 1. The Veteran does not have verifiable service in the Republic of Vietnam during his period of active service. 2. The Veteran does not have verifiable exposure to herbicides, to include Agent Orange, during his period of active service. 3. The Veteran’s current coronary artery disease was not incurred during service; any current coronary artery disease is unrelated to service. 4. The Veteran’s current Parkinson’s disease was not incurred during service; any current Parkinson’s disease is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for presumptive service connection for coronary artery disease have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for presumptive service connection for Parkinson’s disease have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from March 1968 to March 1970. In December 2018, the Veteran testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. The Veterans Law Judge (VLJ) that presided over the hearing is no longer with the Board. Generally, a judge who presides over a Board hearing must also participate in adjudication of the case. The Veteran was thus sent a January 2021 letter affording him 30 days to request a new hearing before a current Veterans Law Judge. The Veteran did not respond within 30 days; thus, his case will be decided by another Veterans Law Judge. The Veteran’s appeal was previously before the Board in October 2019 but was remanded for additional development. Specifically, the Veteran’s claim was returned to the Agency of Original Jurisdiction (AOJ) to attempt to obtain additional records confirming the Veteran’s Republic of Vietnam service, and to contact the Joint Service Records Research Center (JSRRC) to attempt ot verify Republic of Vietnam service. In November 2019, the Veteran was sent correspondence requesting he submit any evidence establishing service in the Republic of Vietnam, to include temporary duty (TDY) assignment orders, pay stubs, plane tickets, or names of other participating in his claimed criminal investigation department (CID) investigations. In addition, the AOJ attempted to obtain verification of Republic of Vietnam service from the JRSSC. Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aires v. Peake, 22 Vet. App. 97, 105 (2008). Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Neither the Veteran nor his representative have 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). Service Connection 1. Entitlement to service connection for coronary artery disease as a result of exposure to herbicides, to include Agent Orange 2. Entitlement to service connection for Parkinson’s disease as a result of exposure to herbicides, to include Agent Orange disease Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran’s diagnosis of coronary artery disease and Parkinson’s disease has been confirmed through VA and private medical treatment records. The Veteran does not contend, and the record does not establish, that his coronary artery disease and Parkinson’s disease was incurred during his period of active service. Rather, he asserts that he was exposed to herbicides during service, which caused his disabilities. VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases are deemed associated with herbicide exposure under current law. The list of those diseases includes Parkinson’s disease and coronary artery disease. 38 C.F.R. § 3.309(e). If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for an herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. The record does not establish the Veteran served in the Republic of Vietnam. Indeed, he was stationed in Mannheim, Germany. He asserts he was assigned for temporary duty with the CID. While assigned to the CID, the Veteran testified that on two separate occasions he traveled to the Republic of Vietnam, for two days each time, to investigate self-inflicted gun-shot wounds. The Veteran further testified that on occasion while stationed at Mannheim, Germany, he participated in the loading of chemicals onto tanker trucks. Based on a review of the record, the Board finds the preponderance of the evidence weighs against finding exposure to herbicides. There are no records confirming or tending to support the Veteran’s statements. In July 2015, the AOJ requested records from the US Army Crime Records Center requesting information regarding the Veteran’s asserted TDY assignment into the Republic of Vietnam. However, the request for information was denied, noting that the records requested were outside of the 40-year record retention requirement. In November 2019, the AOJ requested that the Veteran send any evidence regarding his claimed TDY into the Republic of Vietnam, including TDY orders, plane tickets, pay stubs, or names of other service members that were also involved in the TDY CID investigations. The request for information was not answered by the Veteran. The Board notes this information could have been crucial to his claim. The duty to assist is a two-way street. If the Veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thereafter, in October 2020, the AOJ issued a formal finding that there was insufficient information provided by the Veteran to verify his service in the Republic of Vietnam. The Board has considered whether the lay statements establish exposure. The Veteran has provided testimony that he was sent to Vietnam twice on temporary duty orders for the Criminal Investigations Division (CID). His personnel records do not contain evidence confirming or tending to confirm this statement. As discussed above, he did not provide any official documentation of TDY orders, his involvement with CID, or of his security clearance. The Board observes that he is competent to report his own history, but does not find the Veteran’s report to be credible in light of the lack of contemporaneous evidence supporting or suggesting support of the statement. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). In support of his claim, the Veteran’s ex-wife reported, in a July 2013 lay statement, that the Veteran had mentioned to her in the late 1990’s that he had served in Vietnam. The Board observes that she also noted that she did not believe him when he told her that, and that she lived with him during his active service at Mannheim, Germany, and was unaware of any service in Vietnam during that time. She reported that he was sent on temporary duty orders, and was gone for a few days, but she assumed it was pertaining to hauling tanks to another base. The Veteran’s ex-wife is competent to report her own history and observations, but her statement establishes that she does not have personal knowledge of the Veteran’s reports regarding temporary duty orders to Vietnam, and it does not establish that the Veteran was exposed to herbicides. The Board notes that his personnel records show he was given temporary duty orders in January 1969, and administrative leave in March 1970, but the records specify that the orders were given to attend a class and to conduct business, both in Germany. In sum, the Board does not find the Veteran’s statement regarding exposure in Vietnam to be probative, given the lack of evidence in his service records showing or suggesting his involvement in CID or temporary orders to Vietnam, and his lack of response to efforts to corroborate his statements. Further, the only other evidence was from his ex-wife, who clearly did not know whether the Veteran had ever been to Vietnam. That is, the preponderance of the evidence weighs against exposure in this manner. The Veteran has also asserted exposure through spraying defoliants while stationed in Germany. As mentioned, this has not been confirmed by the service department. The Veteran has not provided any additional evidence in support of this statement, which the Board does not find probative. It does not establish the defoliant that was used, or that it meets the criteria of 38 C.F.R. § 3.307(a)(6). The Veteran did not say that he was informed what it was, and he has not been shown to have the training or expertise to competently identify what was being used. Accordingly, exposure to herbicides, to include Agent Orange, is not conceded for Veteran’s serving in Mannheim, Germany, and entitlement to presumptive service connection for coronary artery disease and Parkinson’s disease is not warranted. See 38 C.F.R. § 3.307(a). The Board notes that the medical evidence of record does not suggest, or contain a medical opinion, that the Veteran’s current coronary artery disease or Parkinson’s disease was related to his period of active service. Accordingly, entitlement to service connection for coronary artery disease or Parkinson’s disease is not warranted on a direct basis. See 38 C.F.R. § 3.303. The Board concludes that the preponderance of the evidence is against the claim for service connection for the Veteran’s current coronary artery disease and Parkinson’s disease. The benefit of the doubt rule therefore does not apply, and service connection for coronary artery disease and Parkinson’s disease is not warranted. Amanda E.H. Gibson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.