Citation Nr: 21015443 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-39 261 DATE: March 17, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for a cardiovascular (CV) disorder is granted. Entitlement to service connection for diabetes mellitus, type II, (DM) is granted. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a respiratory disorder is denied. Entitlement to service connection for hepatitis C is denied. FINDINGS OF FACT 1. The Veteran’s active included assignment aboard the U.S.S. Bon Homme Richard from August 1969 to January 1970, and the ship was in the 12 nautical mile territorial sea of the Republic of Vietnam during that time. 2. The most probative evidence reflects that hypertension, a CV disorder, and DM are causally related to service. 3. Left and right knee disorders, diagnosed as degenerative joint disease (DJD), were not shown to be chronic, not continuous since service, not shown to a compensable degree within one year of service, and are not causally or etiologically related to service. 4. The Veteran sought treatment for a respiratory infection in service; symptoms were not shown to be chronic; a current respiratory disorder, diagnosed as asbestos related pleural disease and chronic obstructive pulmonary disease (COPD), is not causally or etiologically related to service. 5. Hepatitis C was not shown in service and is not casually or etiologically related to service. CONCLUSIONS OF LAW 1. Hypertension is presumed to have been incurred as a result of in-service herbicide exposure. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2020). 2. DM is presumed to have been incurred as a result of in-service herbicide exposure. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2020). 3. A CV disorder is presumed to have been incurred as a result of in-service herbicide exposure. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2020). 4. A left knee disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 5. A right knee disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 6. A chronic respiratory disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2020). 7. Hepatitis C was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, prior to March 2019, the issues of service connection for hypertension, a CV disorder, and DM were stayed pending the adjudication of Procopio v. Wilkie. 913 F.3d 1371 (2019). In March 2019, the Federal Circuit lifted the stay on Procopio. Therefore, the Board may now adjudicate these issues. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran: (1) served in the Republic of Vietnam between January 1962 and May 1975, (2) served between April 1968 and August 1971 in or near the Korean Demilitarized Zone; (3) served near the base perimeter of certain Thailand Air Force Bases during the Vietnam War era, or (4) regularly and repeatedly operated, maintained, or served aboard aircraft known to have been used to spray a herbicide agent during the Vietnam War Era. 38 C.F.R. § 3.307(a)(6). On January 29, 2019, the Federal Circuit held that the phrase “service in the Republic of Vietnam” in 38 U.S.C. § 1116 included the territorial sea of the Republic of Vietnam and was not limited to the landmass or inland waterways of that nation, reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008). Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en bane) (finding that veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’” are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements). In March 2019, the Procopio stay was lifted. The Court in Procopio announced a rule of law conferring new significance to the 12 nautical mile demarcation. Hypertension, CV Disorder, and DM As an initial matter, hypertension, a CV disorder, and DM are chronic disorders under § 3.309 (a). Therefore, direct service connection and presumptive service connection based on chronicity/continuity will be addressed. Further, the Veteran contends that these disorders were incurred as a result of exposure to herbicide agents. As these disorders are listed under § 3.309 (e), as those which may have been incurred as a result of in-service exposure to herbicide agents, presumptive service connection will also be addressed on this basis. Turning first to direct service connection, the Veteran was diagnosed with hypertension in 2005, mild left ventricular hypertrophy in 2011, and DM in 2009. Therefore, current disorders are shown, and the first element of direct service connection is met. As to an in-service incurrence, service treatment records (STRs) are absent of complaints, diagnoses, or treatment for hypertension, a CV disorder, or DM. Specifically, the Veteran sought treatment for rubella and respiratory infections in service but did not report symptoms of these disorders. Moreover, the Veteran’s separation examination was absent of complaints of these disorders. Therefore, the second element of direct service connection is not met, and the medical evidence does not support the claims of direct service connection. Turning to presumptive service connection based on chronicity/continuity, the Veteran was discharged from service in 1971 but was not diagnosed with hypertension until 2005, a CV disorder until 2011, and DM until 2009. As he was discharged in 1971 and symptoms of these disorders were not identified until about 30-40 years later, the medical evidence does not support service connection on a chronic in service or continuity of symptomatology basis. Further, these disorders did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. Specifically, the Veteran separated from service in 1971 and did not seek treatment for hypertension until 2005, a CV disorder until 2009, and DM until 2011. Therefore, this evidence does not support presumptive service connection on a “manifest within one-year from separation” basis, and the medical evidence does not support presumptive service connection is not supported by the medical evidence. As to presumptive service connection based on in-service exposure to herbicides, the Veteran served aboard the U.S.S. Bon Homme Richard from August 1969 to January 1970. Deck logs from the U.S.S. Bon Homme Richard showed that the ship was within 12 nautical miles off the coast of Vietnam in August 1969. Therefore, hypertension, a CV disorder, and DM are presumed to have been incurred in service as a result of herbicide exposure and the evidence supports the claims under the theory of presumptive service connection. Left and Right Knee Disorders As an initial matter, arthritis is a chronic disorder under § 3.309. Therefore, both direct and presumptive service connection will be addressed. Turning first to direct service connection, knee pain was diagnosed in 2006, left knee DJD was diagnosed in 2006, and right knee DJD was diagnosed in 2009. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, STRs are absent of complaints, diagnoses, or treatment of left and right knee disorders. Specifically, the Veteran sought treatment for rubella and respiratory infections in service but did not report knee pain or knee injuries. Further, the knees were normal at separation. Therefore, the second element of direct service connection is not met, and the medical evidence does not support the claim of direct service connection. Turning to presumptive service connection, the Veteran was discharged from service in 1971 but was not diagnosed with left knee DJD until 2006 and right knee DJD until 2009. As he was discharged in 1971 and symptoms of arthritis were not identified until 2006 and 2009, over 30 years later, the medical evidence does not support service connection on a chronic in service or continuity of symptomatology basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. Specifically, the Veteran separated from service in 1971 and did not seek treatment for knee pain until 2006. Therefore, this evidence does not support presumptive service connection on a “manifest within one-year from separation” basis, and the medical evidence does not support presumptive service connection is not supported by the medical evidence. Respiratory Disorder In addition to the above regulations, service connection may be granted for a condition diagnosed after military discharge provided evidence establishes that the condition was caused by service. Service connection may be granted on this basis for a disability related to asbestos exposure during service if evidence demonstrates that the veteran was actually exposed in service and that a disease usually associated with such exposure resulted. As to a current disorder, the Veteran was diagnosed with asbestos related pleural disease in 2006 and COPD in 2009. Therefore, the first element of service connection is met. As to in-service asbestos exposure, a review of the military personnel records reveals that the Veteran’s military occupational specialty (MOS) was boatswain’s mate. Further, in an August 2012 statement, he reported in-service exposure to asbestos from cleaning the ship on which he was stationed. As there is no evidence to contradict his statements, in-service asbestos exposure is conceded. As to nexus, in a December 2019 VA examination, the Veteran complained of shortness of breath and chest tightness. Upon examination, the examiner opined that a current respiratory disorder was less likely than not incurred in service. He noted that the Veteran had been diagnosed with bronchitis, asbestos related pleural disease, and COPD. However, he noted that since the Veteran was already service connected for bronchitis, he was only opining as to the etiologies of asbestos related pleural disease and COPD. Specifically, the examiner explained that exposure to asbestos does not cause COPD, as asbestos exposure caused restriction of air into the lungs whereas COPD caused obstruction. Further, he noted that the Veteran’s MOS of boatswain’s mate had minimal asbestos exposure. He also stated that the Veteran reported 24 years of tobacco abuse as well as a 12-15 year history working as a pipe coverer after service. Therefore, the examiner opined that it was at least as likely as not that any significant asbestos exposure occurred post service. There is no contradictory opinion. Therefore, the medical evidence does not support the claim of service connection. Hepatitis C As to a current disorder, in 2011, the Veteran reported being diagnosed with hepatitis C in 1996. Further, clinical records show that hepatitis C was diagnosed in 2005. Therefore, the first element of service connection is met. As to an in-service incurrence, STRs are absent of complaints, diagnoses, or treatment of hepatitis C. Specifically, the Veteran sought treatment for rubella and respiratory infections in service but did not report hepatitis C or symptoms of hepatitis C. Further, his separation examination was normal. Moreover, hepatitis C was not recognized prior to the late 1980s. As the Veteran separated from service in the late 1970s, the absence of in-service manifestations is not dispositive of the issue. To the extent that the Veteran asserts that hepatitis C began in service, in a December 2019 VA examination, he reported being diagnosed with hepatitis C in 1985. He also reported a history of IV drug use, unprotected sexual intercourse while deployed in Asia, and tattoos from Asian tattoo parlors. Upon examination, the examiner opined that hepatitis C was less likely than not incurred in service. He reasoned that the Veteran reported a history of unprotected sex, drug use, and tattoos from Asian tattoo parlors in service. He also noted that the Veteran had no other history for potential high risk exposure for hepatitis C. Further, the examiner stated that while it was not known how long the Veteran had hepatitis C before it was diagnosed, it was likely that one of the abovementioned high risk behaviors was causative for contracting it. The examiner also stated that the Veteran’s drug use was at least as likely as not the proximate cause of infection. There is no contradictory opinion. Therefore, the medical evidence does not support the claim of service connection. The Board has considered the Veteran’s lay statements that these disorders began in service. While he is competent to report symptoms because this requires only personal knowledge as it came to him through his senses, he is not competent to offer etiologies of these disorders. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28. Vet. App. 366, 369-370 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ragofsky, Attorney Advisor 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.