Citation Nr: 21015471 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-01 447 DATE: March 17, 2021 ORDER Entitlement to service connection for hypertension, to include as due to exposure to herbicides is denied. Entitlement to service connection for kidney cancer, to include as due to exposure to herbicides is denied. Entitlement to service connection for lung problems is denied. Entitlement to service connection for acid reflux is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that hypertension began during active service, or is otherwise related to an in-service injury or disease; and did not have an onset within one year of discharge from service. 2. The preponderance of the evidence is against finding that kidney cancer began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence of record is against finding that the Veteran has had lung problems at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence is against finding that acid reflux began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, to include as due to exposure to herbicides, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for kidney cancer, to include as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for lung problems have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for acid reflux are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1967 and from September 1967 to September 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in March 2019. In July 2019, the Board remanded the issues for further development. In November 2019, the Veteran submitted VA Form 21-4142 authorizing disclosure of medical records to the VA. The Veteran’s request was rejected for failure to include a VA Form 21-4142a. In January 2020, the Veteran was sent a letter requesting the Veteran return VA Form 21-4142 and VA Form 21-4142a in order to obtain private treatment records the Veteran had identified. The Veteran did not respond to this letter or submit forms. The Board notes that a claimant, in pursuing a claim, has some responsibility to cooperate in the development of all facts pertinent to his or her claims, and the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that there has been substantial compliance with the prior Board remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A Veteran who, during active military, naval, or air service, 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 during such service to herbicides, unless there is affirmative evidence to establish that the Veteran was not exposed to herbicides during that service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The list of presumptive diseases for exposure to herbicides includes AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309. 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicides The Veteran has argued that his hypertension is due to exposure to herbicide agents. The Board notes the AOJ conceded the Veteran was exposed to herbicides due to his service in the Republic of Vietnam. However, hypertension is not currently a disease listed as associated with exposure to herbicide agents. Therefore, the Veteran’s hypertension is not entitled to presumptive service connection due to herbicide exposure. Nevertheless, even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of hypertension, and evidence shows that the Veteran was exposed to herbicides during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hypertension began during service or is otherwise related to an in-service injury, event, or disease. The March 2020 VA examination shows the Veteran was not diagnosed with hypertension until 1980, four years after his separation from service. The Veteran alleges his hypertension first manifested in 1995. See January 2012 Veteran’s Application for Compensation or Pension. The December 2019 and March 2020 VA examiners’ opinions note that the Veteran’s hypertension is not at least as likely as not related to an in-service injury, event, or disease, including exposure to Agent Orange. The December 2019 VA examiner opined that the Veteran’s hypertension was not at least as likely as not related to Agent Orange exposure. The examiner reasoned that the Veteran’s hypertension is most likely related to the Veteran’s increased BMI and obesity status. The examiner noted there are no reports of hypertension or elevated blood pressure readings in the Veteran’s STRs. The examiner stated that evidence of record does not note the length of exposure to Agent Orange. The May 2011 U.S. News article noting findings presented during a special news conference at the American Urological Association annual meeting should be viewed as preliminary because the findings have not been subjected to the peer review that typically accompanies publication in a medical journal. The examiner continued that there is limited suggestive evidence of an association for Agent Orange exposure and other health effects that include high blood pressure. However, epidemiological studies do not support a nexus or peer reviewed evidence that there is a positive association between hypertension and herbicide exposure in detail. The March 2020 VA examiner opined that the Veteran’s hypertension was not at least as likely as not related to exposure to Agent Orange. The examiner reviewed the National Academy of Science Agent Orange Update 11’s upgrade of hypertension to the “sufficient” category indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure. The examiner reasoned that the committee which carried out the study and wrote the report focused on literature that does not take into account the multiple other causes of hypertension such as family history and obesity. The review is retrospective and has more potential for selection bias than a prospective study. The study does not create a definitive link between hypertension and Agent Orange exposure. Based on the study, one would infer that only 9 percent more Veterans who sprayed herbicide reported the development of hypertension than those that did not spray. Just by serving outside of Vietnam reduced your chances of developing hypertension by 17 percent compared to those that did spray herbicide. The Veteran did not spray herbicides. The 2020 examiner’s opinion is probative because it provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his hypertension is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex as it requires knowledge of the impact of a chemical on an internal process. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the 2020 VA opinion. There is also no persuasive indication that the Veteran’s hypertension manifested to a compensable degree within a year of separation. In this regard, the Veteran had no complaints or treatment for hypertension during service. Hypertension was not listed in the Veteran’s separation examination. The Veteran’s hypertension first manifested many years after service. There is no persuasive credible lay evidence that the Veteran's claimed disorder had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. In reaching this decision, 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 claim for service connection for hypertension, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for kidney cancer, to include as due to exposure to herbicides The Veteran has argued that his kidney cancer is due to exposure to herbicide agents. The Board notes the AOJ conceded the Veteran was exposed to herbicides due to his service in the Republic of Vietnam. However, kidney cancer is not currently a disease listed as associated with exposure to herbicide agents. Therefore, the Veteran’s kidney cancer is not entitled to presumptive service connection due to herbicide exposure. Nevertheless, even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of kidney cancer, and evidence shows that the Veteran was exposed to herbicides during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of kidney cancer began during service or is otherwise related to an in-service injury, event, or disease. The March 2020 VA examination shows the Veteran was not diagnosed with neoplasm of the kidney and kidney removal until 2011, approximately 38 years after his separation from service. The December 2019 and March 2020 VA examiners’ opinions find that the Veteran’s kidney cancer is not at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicides. The December 2019 VA examiner opined that the Veteran’s kidney cancer was not at least as likely as not related to exposure to Agent Orange. The examiner reasoned the literature shows that there is inadequate or insufficient evidence to determine whether an association exists in reference to kidney cancer. Few studies have looked at a possible link between Agent Orange exposure and other cancers including cancers of the kidney. Moreover, the examiner stated there is limited suggestive evidence of an association for Agent Orange exposure and other health effects that include renal cell carcinoma. However, epidemiological studies do not support a nexus or peer reviewed evidence that there is a positive association between renal cancer and herbicide exposure in detail. The March 2020 VA examiner opined that the Veteran’s kidney cancer was not at least as likely as not related to exposure to Agent Orange. The examiner recognized that an American Urological Association News article of May 2011 described there may be a connection between renal cancer and herbicide exposure, but ultimately concluded that there is no definitive study correlating the development of kidney cancer with herbicide exposure. Based on the American Cancer society, the average age of diagnosis is 64 with men twice as more affected than women. The examiner reasoned the Veteran falls within this category. The examiner’s opinion is probative because it provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the 2020 VA examiner’s opinion. The Veteran believes his kidney cancer is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex as it requires knowledge of the impact of a chemical on an internal process. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the 2020 examiner’s opinion. Therefore, entitlement to service connection for kidney cancer is not warranted. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. 3. Entitlement to service connection for lung problems The Veteran contends that his lung problems are due to pneumonia developed in 1967. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a lung problem or respiratory disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran complains of periodic shortness of breath, the most probative evidence of record does not show that he has had a lung disability at any point during or in proximity to the appeal period. The Board is cognizant of the holding in Saunders v. Wilkie which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment is in fact a disability, and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. However, the evidence shows that with regards to the respiratory system there is no functional impairment. See March 2020 VA examination. The evidence of record does not show the Veteran experiences pain or functional impairments with regards to his respiratory system. As such, the Veteran’s periodic shortness of breath does not amount to a functional impairment of earning capacity, and Saunders is not applicable in this case. The March 2020 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of periodic shortness of breath, he did not have a diagnosis of a respiratory condition. Further, despite treatment from May 2002 to March 2020, VA treatment records do not contain a diagnosis of a respiratory condition. While the Veteran believes he has a current diagnosis of a respiratory condition, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In the absence of proof of a current disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In this case there is an absence of proof of a respiratory disability during or in proximity to the appeal period. Without evidence of a current lung disability, the Board need not address the other elements of service connection. The preponderance of the evidence is therefore against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. Therefore, entitlement to service connection for lung problems is not warranted. 4. Entitlement to service connection for acid reflux The Veteran contends that his acid reflux first manifested during service with complaint of dyspepsia. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of gastroesophageal reflux disease (GERD), and evidence shows that the Veteran experienced dyspepsia during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of GERD began during service or is otherwise related to an in-service injury, event, or disease. The November 2015 VA examination shows the Veteran was not diagnosed with GERD until 2002, approximately 29 years after his separation from service. While the Veteran is competent to report having experienced symptoms of regurgitation, reflux, and nausea over the years, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of GERD. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the November 2015 VA examiner opined that the Veteran’s GERD is not at least as likely as not related to an in-service injury, event, or disease, including dyspepsia during service. The rationale was that to state dyspepsia was a diagnosis or symptom of GERD would be mere speculation. The Veteran underwent an upper GI study in 1973 and was negative for GERD. Moreover, the Veteran was not diagnosed until several years after service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his GERD is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the November 2015 VA examiner’s opinion. The preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. Therefore, entitlement to service connection for acid reflux is not warranted. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.