Citation Nr: 21023379 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-35 514 DATE: April 20, 2021 ORDER Entitlement to service connection for right leg deep vein thrombosis is denied. REMANDED Entitlement to service connection for cyst on back is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for cranial hemorrhage is remanded. FINDING OF FACT The evidence does not probatively establish that the Veteran has experienced a right leg deep vein thrombosis for VA compensation purposes during the appellate period. CONCLUSION OF LAW The criteria for entitlement to service connection for right leg deep vein thrombosis have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to January 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran presented sworn testimony before the undersigned Veterans Law Judge at a February 2021 virtual Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. As to the matter adjudicated below, neither the Veteran nor his representative has raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). 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.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. 1. Entitlement to service connection for right leg deep vein thrombosis is denied. The Veteran seeks entitlement to service connection for a right leg deep vein thrombosis. At the February 2021 virtual Board hearing, the Veteran alleged that this disability was the result of in-service exposure to herbicide agents or secondary to medication taken for his various health conditions. Generally, to establish service connection, a veteran must show: (1) a present disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred during service, the so-called “nexus” requirement. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. Under certain circumstances, service connection may also be achieved by application of relevant presumptive and secondary service connection regulations, where appropriate. Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a present disability during the appellate period. See Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997) (holding that section 1131 requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998) (applying Degmetich to section 1110); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (recent diagnoses predating filing of claim are relevant evidence in determining whether a current disability existed at time claim was filed or during its pendency). Here, the evidence confirms that the Veteran was diagnosed with a deep vein thrombosis in the right leg in June 2011. The Veteran did not file his service connection claim until September 2015, and a disability from 2011 is too remote to be considered a current disability during the appellate period, which began with the filing of his claim. Private treatment records from March 2016 note the Veteran’s history of a deep vein thrombosis in the right leg in 2011, but do not contain clinical findings or a diagnosis indicating that the Veteran actively continued to experience such a disability. The physician stated that the Veteran’s historical diagnosis remained asymptomatic and should be subject to continued observation in case of recurrence. No other medical records during the appellate period contain an active diagnosis of right leg deep vein thrombosis. At the February 2021 virtual Board hearing, the Veteran testified that he had a right leg deep vein thrombosis in 2011, but did not provide any indication that he experienced such a disability during the appellate period. After consideration of both the lay and medical evidence of record, the Board finds no probative evidence establishing that the Veteran has experienced a right leg deep vein thrombosis during the appellate period. Consideration has been given to the holding of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), where the United States Court of Appeals for the Federal Circuit held that pain (and other symptoms) can constitute a current disability under 38 U.S.C. § 1110, so long as it results in functional impairment of earning capacity. However, in the present matter, the Veteran has not alleged any specific symptoms in his right leg during the appellate period that have resulted in a functional impairment of earning capacity. Consequently, the Board finds that the Veteran has not experienced a right leg deep vein thrombosis for VA compensation purposes within the appellate period. In the absence of a present disability during the appellate period, the Veteran’s appeal seeking entitlement to service connection for right leg deep vein thrombosis must be denied. 38 C.F.R. § 3.303; Brammer, 3 Vet. App. at 225. REASONS FOR REMAND Although the Board regrets the additional delay, the below referenced claims must be remanded for additional evidentiary development to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. Herbicide Agent Exposure in South Korea The Veteran has alleged that he was exposed to herbicide agents during his service in South Korea. Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide agent exposure to certain veterans who served in the Korean Demilitarized Zone (DMZ). See 76 Fed. Reg. 4245. Specifically, a veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicide agents are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iv). More recently, President Trump signed into law the Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (2019) (relevant portion codified in 38 U.S.C. § 1116B). Effective January 1, 2020, the new law applies the presumption of herbicide agent exposure to those veterans who served in or near the Korean DMZ between September 1, 1967 and August 31, 1971, without explicitly restricting the presumption to certain military units. The regulations have not been updated to reflect this amendment to the statutory law. The Veteran’s service personnel records indicate that he served in South Korea from December 1967 to January 1969. While deployed in South Korea, the Veteran was assigned to the Combat Brigade of the 2nd Infantry Division, 1st Battalion, 12th Artillery. According to the Veterans Benefits Administration (VBA) M21-1 Adjudication Procedures Manual, this unit is on the list of units confirmed as operating in the Korean DMZ during the qualifying time period of September 1, 1967 to August 31, 1971. See VBA Manual M21-1, IV.ii.1.H.3.b. (last accessed 4/15/21). The M21-1 is not binding on the Board and, to rely on the M21-1, the Board must conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257 (2018). Here, the Board finds that the M21-1 may be relied upon as a factor in its decision because to do so is wholly favorable to the Veteran. The M21-1 information, as well as the relevant evidence from the Veteran’s service department records, indicates that the Veteran’s unit served in the Korean DMZ during the time period when herbicide agents were used. Consequently, it is presumed that the Veteran was exposed to herbicide agents during his active duty service in South Korea. 1. Entitlement to service connection for cyst on back is remanded. At the February 2021 virtual Board hearing, the Veteran testified that he currently experiences a back cyst that he believes is the result of herbicide agent exposure during his verified service near the Korean DMZ. The Veteran’s private treatment records during the appellate period—which are largely handwritten and difficult to decipher—do not indicate a diagnosis of a back cyst during the appellate period. Nevertheless, the Veteran is competent to lay report the presence of a cyst on his back, as this is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran lacks the medical expertise and training to diagnose his reported back cyst as a clinically significant skin disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Given the Veteran’s competent and credible lay reports of a back cyst and his presumed in-service exposure to herbicide agents, the Board finds that VA’s duty to obtain a VA medical examination has been triggered. 38 C.F.R. § 3.159(c)(4). The Board notes that a back cyst is not one of the disabilities presumptively linked to herbicide agent exposure under 38 C.F.R. § 3.309(e); however, the Veteran’s claim must still be considered under a direct service connection theory of entitlement. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, this claim shall be remanded for a VA examination to determine whether the Veteran’s back cyst constitutes a valid clinical diagnosis for VA compensation purposes, and if so, whether this disability is the result of his presumed in-service exposure to herbicide agents. 2. Entitlement to service connection for vertigo is remanded. The Veteran seeks entitlement to service connection for vertigo, also claimed as dizziness or balance issues. He argues that this disability is secondary to his service-connected bilateral hearing loss and tinnitus disabilities under 38 C.F.R. § 3.310(a),(b). The record also reasonably raises the contention that this disability may be the result of the Veteran’s presumed in-service exposure to herbicide agents. A review of the medical evidence shows historical reports of “dizziness” in private treatment records dating back to 2011 and 2012. No treatment records during the appellate period document reports of dizziness or a diagnosis of any clinically significant vestibular disorder. At the February 2021 virtual Board hearing, the Veteran testified to his subjective feelings of dizziness, bumping things, balance issues, and disequilibrium. The Veteran is competent to report symptoms within the realm of his personal experience, although he is not competent to diagnose these symptoms as clinically significant and he is not competent to attribute such symptoms to his service-connected disabilities. See Layno, 6 Vet. App. at 470; see Jandreau, 492 F.3d at 1377. Given the Veteran’s competent and credible lay reports of dizziness and his presumed in-service exposure to herbicide agents, the Board finds that VA’s duty to obtain a VA medical examination has been triggered. 38 C.F.R. § 3.159(c)(4). The Board notes that a dizziness/vestibular disability is not one of the disabilities presumptively linked to herbicide agent exposure under 38 C.F.R. § 3.309(e); however, the Veteran’s claim must still be considered under a direct service connection theory of entitlement. See Combee, 34 F.3d at 1042. Accordingly, this claim shall be remanded for a VA examination to determine whether the Veteran’s claimed dizziness constitutes a valid clinical diagnosis for VA compensation purposes, and if so, whether this disability is the result of his presumed in-service exposure to herbicide agents. If a clinical disability is established, the VA examiner shall also be requested to address whether this disability is proximately due to, the result of, or aggravated by the Veteran’s service-connected bilateral hearing loss and/or tinnitus. 3. Entitlement to service connection for a heart disability is remanded. The Veteran seeks entitlement to service connection for a heart disability, which he alleges is the result of his presumed in-service exposure to herbicide agents. The Board has fully reviewed the electronic claims file and finds the only heart disability that the Veteran has experienced during the appellate period is a finding of mild aortic calcification. He also has a diagnosis of hyperlipidemia, but this is merely a laboratory finding, not a recognized disability for VA compensation purposes. See generally 61 Fed. Reg. 20440, 20445 (May 7, 1996) (indicating that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities). Given the Veteran’s diagnosis of mild aortic calcification and his presumed in-service exposure to herbicide agents, the Board finds that VA’s duty to obtain a VA medical examination has been triggered. 38 C.F.R. § 3.159(c)(4). The Board notes that ischemic heart disease is a disability presumptively linked to herbicide agent exposure under 38 C.F.R. § 3.309(e); however, a medical opinion is required to determine whether aortic calcification medically constitutes ischemic heart disease. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (the Board may not make independent medical assessments). Accordingly, this claim shall be remanded for a VA examination to determine whether the Veteran’s mild aortic calcification constitutes as ischemic heart disease, and whether this disability is the result of the Veteran’s presumed in-service exposure to herbicide agents. 4. Entitlement to service connection for cranial hemorrhage is remanded. The Veteran seeks entitlement to service connection for a cranial hemorrhage. At the February 2021 virtual Board hearing, the Veteran testified that he had a nightmare in 2014 and when he jumped out of bed, he fell, and hit his head on the nightstand. As a result he developed a subdural hematoma and underwent a craniotomy to control his brain hemorrhaging. This contention is confirmed in the Veteran’s private treatment records. At the Board hearing, the Veteran specifically alleged that the fall and resulting cranial hemorrhage were the result of balance issues caused by his yet-to-be service-connected dizziness and/or his service-connected bilateral hearing loss and tinnitus. The Board finds that a VA examination is required to assess this secondary service connection theory of entitlement pursuant to 38 C.F.R. § 3.310(a). As it is clear from the record and the Veteran’s own lay contentions that his cranial hemorrhage resulted from his head injury sustained in 2014, the Board finds no basis for analysis on whether this condition is etiologically related to his presumed in-service exposure to herbicide agents. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (stating that “[w]here the claimant has raised an issue of service connection, the evidence in the record must be reviewed to determine the scope of that claim . . . where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory.”). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination before an appropriate VA examiner to assess the nature and etiology of the Veteran’s claimed back cyst disability. Following an in-person examination and complete review of the electronic claims file, the VA examiner is requested to address the following inquiries: (a.) Is the Veteran’s reported back cyst a clinically significant skin disability? The VA examiner is requested to consider and address the Veteran’s credible and competent reports of a back cyst, as discussed at the February 2021 Board virtual hearing. (b.) If the answer to question 1(a) is yes, is it at least as likely as not (50 percent probability or greater) that the Veteran’s current back cyst disability is the result of his presumed in-service exposure to herbicide agents? 2. Schedule the Veteran for a VA examination before an appropriate VA examiner to assess the nature and etiology of the Veteran’s claimed dizziness. Following an in-person examination and complete review of the electronic claims file, the VA examiner is requested to address the following inquiries: (a.) Is the Veteran’s reported dizziness, balance issues, and disequilibrium a clinically significant vestibular disability? The VA examiner is requested to consider and address the Veteran’s credible and competent reports of dizziness and balance issues, as discussed at the February 2021 Board virtual hearing. (b.) If the answer to question 2(a) is yes, is it at least as likely as not (50 percent probability or greater) that the Veteran’s current dizziness/vestibular disability is the result of his presumed in-service exposure to herbicide agents? (c.) If the answer to question 2(a) is yes, is it at least as likely as not (50 percent probability or greater) that the Veteran’s current dizziness/vestibular disability is proximately due to, the result of, or aggravated by the Veteran’s service-connected bilateral hearing loss and/or tinnitus? 3. Schedule the Veteran for a VA examination before an appropriate VA examiner to assess the nature and etiology of the Veteran’s claimed heart disability. Following an in-person examination and complete review of the electronic claims file, the VA examiner is requested to address the following inquiries: (a.) Is the Veteran’s diagnosis of mild aortic calcification a form of ischemic heart disease? Why or why not? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current mild aortic calcification is the result of his presumed in-service exposure to herbicide agents? 4. Schedule the Veteran for a VA examination before an appropriate VA examiner to assess the nature and etiology of the Veteran’s claimed cranial hemorrhage. Following an in-person examination and complete review of the electronic claims file, the VA examiner is requested to address the following inquiry: (a.) Is it at least as likely as not (50 percent probability or greater) that the fall that resulted in the Veteran’s cranial hemorrhage was proximately due to or the result of the Veteran’s dizziness/vestibular disability (if one is diagnosed) or his service-connected bilateral hearing loss and/or tinnitus? [Continued on Next Page] 5. The RO is also requested to ensure that all medical opinions are supported by a complete explanatory rationale based on the respective VA examiner’s medical expertise; the VA examiner’s clinical experience; current medical principles; and citations to the record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.