Citation Nr: 21022392 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-34 665A DATE: April 15, 2021 ORDER Entitlement to service connection for a respiratory disability is denied. Entitlement to service connection for a skin disability, claimed as actinic keratosis, chloracne, skin discoloration, skin lesions, and vitiligo, is denied. Entitlement to service connection for alopecia is denied. Entitlement to service connection for coronary artery disease is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for peripheral neuropathy, bilateral upper extremities, is denied. Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran had active military service in the Republic of Vietnam or that he was actually exposed to herbicide agents during his active service. 2. The Veteran’s respiratory disabilities, skin disabilities, alopecia, coronary artery disease, diabetes mellitus type II, and peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities first manifested more than one year after his separation from active service. 3. The preponderance of the evidence is against finding that the Veteran’s respiratory disabilities, skin disabilities, alopecia, coronary artery disease, diabetes mellitus type II, and peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities were related to an in-service injury or disease. 4. The Veteran was not service connected for any disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a skin disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for alopecia have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for coronary artery disease have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for peripheral neuropathy, bilateral upper extremities, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 7. The criteria for entitlement to service connection for peripheral neuropathy, bilateral lower extremities, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 8. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1961 to November 1964. He died in February 2015. The appellant is his surviving spouse and has been accepted as a substitute for the Veteran in the appeals pending at the time of his death. The Board remanded this case in July 2018. The remand directed the Agency of Original Jurisdiction (AOJ) to make appropriate efforts to determine whether U. S. military bases in Mannheim and Wiesbaden, Germany, stored chemical agents such as nerve gasses and tear gas, and to make appropriate efforts to verify whether there are additional service personnel records for the Veteran under other Social Security numbers provided by the Veteran in an August 2012 statement. Pursuant to the July 2018 remand, the AOJ sought to verify whether the Veteran was involved in testing of or exposure to chemical, biological, radiological, or explosive devices or agents and contacted the appropriate repository to determine whether there were additional service personnel records for the Veteran under other Social Security numbers. The AOJ was informed that there was no record of the Veteran being involved in testing of or exposure to chemical, biological, radiological, or explosive devices or agents. It was also informed that all service personnel records for the Veteran have been provided. The Board notes that the service personnel records that have been associated with the claims file include some records labeled with the other Social Security numbers that the Veteran provided in his August 2012 statement. There is no indication that further service personnel records for the Veteran exist and have not yet been obtained. Accordingly, the Board finds that VA at least substantially complied with the July 2018 remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran did not raise any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. The appellant also has not raised any such issues. 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). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided. The appellant should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection 1. Entitlement to service connection for a respiratory disability 2. Entitlement to service connection for a skin disability 3. Entitlement to service connection for alopecia 4. Entitlement to service connection for coronary artery disease 5. Entitlement to service connection for diabetes mellitus, type II 6. Entitlement to service connection for peripheral neuropathy, bilateral upper extremities 7. Entitlement to service connection for peripheral neuropathy, bilateral lower extremities The Veteran sought entitlement to service connection for a respiratory disability, a skin disability, alopecia, coronary artery disease, diabetes mellitus type II, and peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities. He contended that those disabilities were due to in-service exposure to chemicals, including herbicide agents, nerve gasses, and tear gas, through his duties as a warehouseman assigned to chemical groups in Germany. He also asserted that he was mistakenly sent to Da Nang in Vietnam for approximately 10 days in March or April 1962 before being returned to the United States and then sent to Germany. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, to include cardiovascular-renal disease and organic diseases of the nervous system, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In addition, certain diseases, to include type II diabetes, ischemic heart disease, and chloracne, may be presumed to have been incurred in service where a veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such a disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307(a)(6)(ii). Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). The medical evidence of record confirms that the Veteran had current diagnoses of respiratory disabilities, skin disabilities, alopecia, coronary artery disease, diabetes mellitus type II, and peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities. The Veteran’s service personnel records confirm that he served in Germany in 1962 and 1963. However, the Board concludes that the claims must be denied because there is no probative evidence demonstrating that the Veteran served in the Republic of Vietnam; that he was actually exposed to herbicide agents during his active service; or that his diagnosed respiratory disabilities, skin disabilities, alopecia, coronary artery disease, diabetes mellitus type II, and peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities were otherwise medically attributable to his active service. The Board finds the Veteran’s assertions that he had service in the Republic of Vietnam in March or April 1962 not to be credible and that he cannot be presumed to have been exposed to herbicide agents under 38 C.F.R. § 3.307(a)(6)(iii). Specifically, in a December 2010 statement, the Veteran reported that he was sent by cargo plane to Da Nang in March or April 1962 “under wrong assignment”, stayed there for approximately 10 days, was flown back to Fort Dix in New Jersey, and then was sent to Germany in June 1962 on the U.S.S. Buckner. He provided a similar account in a June 2011 statement. However, his official service personnel records do not show that he was ever sent to the Republic of Vietnam. Rather, a chronological record of assignments contained in the Veteran’s service personnel records show that he had service in the continental United States and in Germany. It shows that he was stationed at Fort Chaffee in Arkansas from the time of his entrance into active service until late April 1962, at which time he is listed as being en route to Europe. A record of service outside the continental United States shows that he embarked in New York on May 1st and disembarked at Bremerhaven, German, on May 10th. The Veteran has indicated that he traveled to Germany on a ship, which would explain the multiple-days duration of the passage between New York and Germany. There are no periods unaccounted for in the records of assignments in the service personnel records. The service records do not otherwise show any assignments or travel to the Republic of Vietnam. Thus, the detailed official accounts of the Veteran’s assignments and stations from the time of his entrance into active service to his separation from active service do not show service in the Republic of Vietnam. Given that the official service records contradict the Veteran’s statements as to having served in the Republic of Vietnam, the Board finds the Veteran’s statements not to be credible. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether evidence submitted by a Veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other information submitted on behalf of the claimant). Therefore, his statements are not probative in showing that he had service in the Republic of Vietnam such that in-service exposure to herbicide agents may be presumed. The Board further finds the Veteran’s assertions that he was exposed to herbicide agents while serving in Germany not to be credible. Specifically, in his December 2010 statement, the Veteran asserted that he assisted in the management, storage, shipping, receiving, and disposal of containers holding various chemicals. Some of the containers were barrels marked with an orange strip and “labeled with 2-4-D and other numbers and maybe a letter T”. He believed that those containers to held Agent Orange. In December 2010, the Compensation Service indicated that a review of Department of Defense (DOD) documentation does not show any use, testing, or storage of tactical herbicides such as Agent Orange at any location in Germany or Europe. In addition, VA has no documentation showing the use or storage of Agent Orange equipment or supplies in Germany or Europe. The Compensation Service noted that commercial herbicides are used on every U. S. military base. However, commercial herbicides do not fall under the statues and regulations governing presumptive service connection for tactical herbicide exposure. In February 2011, the AOJ made a Personal Information Exchange System (PIES) request for any documents showing exposure to herbicides. A response received later in February 2011 states, “No records of exposure to herbicides”. The AOJ then sought further information from the Veteran, to include through a March 2011 letter, so that the case could be referred to the Joint Services Record Research Center (JSRRC). However, the Veteran did not provide the information necessary for such a referral, and in May 2011 the AOJ made a formal finding of a lack of information required to corroborate exposure to herbicide agents. The Board has conducted its own review of the Veteran’s service records, and concludes that they do not contain evidence of actual in-service exposure to herbicide agents. Thus, the Veteran’s claimed exposure to herbicides in Germany was not verified through a review of the evidence of record, a PIES request, and request to Compensation Service. Based on the above, the Board finds that there is no probative evidence supporting a finding that the Veteran was actually exposed to herbicide agents during his active service. The Veteran was competent to report what he observed in service, but the Board places greater probative value on the research conducted by the service department based on historical documents. That research indicates that tactical herbicides were not present in Germany during the Veteran’s period of active service. Commercial herbicides may have been used in Germany at that time, but such chemicals do not fall under the regulations governing tactical herbicides at 38 C.F.R. § 3.307(a)(6)(i). The Veteran’s reports that he handled containers of herbicide agents is based on supposition, and is contrary to other evidence of record, including the confirmed historical records from the DoD. The probative evidence of record, which is based on review of actual government records, weighs against the Veteran’s suppositions. Therefore, the Board finds those suppositions not to be credible or probative. See Caluza, 7 Vet. App. 498. Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran had active military service in the Republic of Vietnam or that he was actually exposed to herbicide agents during his active service such that the claimed disabilities may be service connected on a presumptive basis as due to exposure to herbicide agents. The Board further finds that the Veteran’s claimed disabilities cannot be service connected as chronic diseases under 38 C.F.R. §§ 3.307(a)(3) and 3.309(a). The Veteran’s service treatment records are absent for complaint of or treatment for the claimed disabilities. The medical treatment records do not show, and the Veteran did not contend, that the claimed disabilities first manifested to a compensable degree during the Veteran’s active service or within one year following his separation from active service. To the contrary, the Veteran reported in December 2010 and March 2011 statements that his claimed disabilities each first manifested sometime between the early 1970s to the late 2000s, greater than one year after his separation from active service. Accordingly, the Board finds that the preponderance of the evidence is against finding that the claimed disabilities meet the criteria for entitlement to service connection under the presumptive provisions of 38 C.F.R. §§ 3.307(a)(3) and 3.309(a). Notwithstanding the presumptive provisions, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, in this case, the Board finds that the preponderance of the evidence is against finding that the Veteran’s respiratory disabilities, skin disabilities, alopecia, coronary artery disease, diabetes mellitus type II, and peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities were related to an in-service injury or disease. The Veteran asserted that he was in daily contact with chemicals while in Germany because he was assigned to chemical groups that were tasks with managing, storing, shipping, receiving, and disposing of chemicals, including herbicides, nerve gasses, and tear gas. The Board finds that the Veteran was competent and credible in that regard, as his service personnel records, including his DD Form 214, show that he had a military occupational specialty of warehouseman and was assigned to chemical groups while in Germany. The Veteran also submitted articles detailing the United States efforts in the 1980s and 1990s to remove stockpiles of chemical weapons from Germany. However, even if it is assumed that the Veteran did work with chemical agents, the mere handling of chemicals does not logically equate to physical exposure to such agents. Instead, in order to constitute an in-service injury or disease exposure to the chemical agent itself is required. To that end, the Veteran has provided no information indicating that in the course of handling containers of chemical agents that he was in fact physically exposed to the chemical agents contained within them, nor is any such history of exposure or treatment for exposure contained in the Veteran’s personnel records or treatment records. Thus, the Veteran’s statements do not establish that he was physically exposed to any nerve agents, tear gas, or other chemical agents during his period of service. Additionally, in June 2019, the AOJ requested verification of the Veteran’s participation in any testing of or exposure to chemical, biological, radiological, or explosive devices or agents. Later in June 2019, the Compensation Service indicated that there is no record of any such testing or exposure. As such, the Board finds that the preponderance of the evidence is against finding that there was an in-service event, injury, or disease to which the Veteran’s claimed disabilities may be etiologically related. The Board acknowledges the Veteran’s assertions to the effect that, based on the fact that he had a number of the diseases that are associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e) and that he had a number of disabilities that may be associated with chemical exposures, it may be deduced that he was exposed to herbicide agents during his active service or that his current disabilities must be related to in-service exposure to chemicals. The Board also acknowledges that the Veteran was provided a VA Agent Orange registry examination that noted his diagnosed coronary artery disease is associated with Agent Orange exposure. However, the diseases listed in 38 C.F.R. § 3.309(e) are only presumed to be caused by exposure to herbicide agents if exposure to herbicide agents is first shown. There are no provisions in the law that would allow VA to presume that those diseases are caused by exposure to herbicide agents when such exposure has not been shown, even for veterans who suffer from multiple disease on that list. There is also no provision in the law that would allow VA to presume that disabilities are related to chemical exposure when no such exposure has been shown. Therefore, the Board does not afford probative weight to the Veteran’s assertions or to any notation in the VA Agent Orange registry examination, and finds that the assertions do not show that it is at least as likely as not that the Veteran was exposed to herbicide agents during his active service or that the claimed disabilities are otherwise related to his active service. Finally, the Board notes that no VA examinations or opinion were provided in regard to the Veteran’s claims. Although medically competent evidence is not always required to trigger VA’s duty to assist by providing a VA examination or opinion, a conclusory generalized lay statement suggesting a relationship between a disability and military service does not suffice to meet the standard of 38 C.F.R. § 3.159(c)(4)(i)(B), as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010). In this case, the only evidence indicating a link between the current disabilities and the Veteran’s active service is the Veteran’s unsupported lay statements. Accordingly, VA’s duty to assist in providing an examination or opinion has not been triggered, and an examination or opinion is not required. See also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (whether a claimant suffered an “in-service event, injury, or disease” under the second prong involves “a classic factual assessment, involving the weighing of facts”). Based on the foregoing, the Board finds that the preponderance of the evidence is against finding that the Veteran had active military service in the Republic of Vietnam, that he was actually exposed to herbicide agents during his active service, that the claimed disabilities first manifested within a presumptive period, or that claimed disabilities were related to an in-service event, injury, or disease. As the preponderance of the evidence is against the claims, the doctrine of reasonable doubt is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. Entitlement to a TDIU A TDIU may be assigned when service-connected disabilities are rated at less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Accordingly, being service connected for a disability is a threshold requirement for entitlement to a TDIU. In this case, the Veteran was not service connected for any disability prior to his death, and the Board has not found him entitled to service connection for any disability. Therefore, because the Veteran was not service connected for any disability, he is ineligible for consideration for entitlement to a TDIU, and entitlement to a TDIU is denied as a matter of law. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16; see Sabonis v. Brown, 6 Vet. App. 426 (1994). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, 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.