Citation Nr: 21025107 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-13 923 DATE: April 27, 2021 ORDER Whether new and material evidence has been received to reopen the claim of entitlement to service connection for left and right knee conditions is denied. Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for a respiratory condition, to include asthma, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for his right knee and left knee disabilities was initially denied in a February 2013 rating decision. The Veteran did not appeal this denial, and it became final. 2. Evidence associated with the claims file since the 2013 rating decision is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim of entitlement to service connection for the right knee and left knee disabilities. 3. The Veteran did not have service in Vietnam. He served onboard the U.S.S. Kitty Hawk, but it did not come within 12 nautical miles of Vietnam during his service on the ship; exposure to herbicides/Agent Orange is not factually shown and may not be presumed. 4. The Veteran’s diabetes mellitus and asthma did not manifest during service or to a degree of 10 percent within one year of separation, and are not related to an event in service. CONCLUSIONS OF LAW 1. The February 2013 rating decision, which denied entitlement to service connection for the right knee and left knees disabilities, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302. 2. The criteria to reopen the claims of service connection for a right knee and left knee disability have not been met. 38 U.S.C. § 5103, 5108; 38 C.F.R. § 3.156. 3. Service connection for diabetes mellitus is not warranted. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. Service connection for asthma is not warranted. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1972 to October 1975, with several years of inactive service with the Reserves, with a period of active duty from June 1984 to August 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. In February 2020, the Board reopened the claims for service connection for diabetes and asthma; denied the claims for bilateral foot plantar fasciitis, a neck condition, and a back condition; and remanded the claims for service connection for diabetes and asthma, and the claim to reopen the bilateral knee condition, for further development. That development having been completed to the extent possible, the matters are again before the Board for appellate review. The 2020 remand directives instructed the RO to contact the Veteran regarding the court documents he discussed during the 2019 Board hearing as well as any other private medical records and to request the deck log and command histories of the U.S.S. Kitty Hawk when the Veteran was on board to verify whether the Veteran’s service included any presence within the 12-nautical mile territorial sea of the Republic of Vietnam. The Board notes the logbooks and command histories are of record, and that the RO sent the Veteran development letters in March 2020, October 2020, and November 2020, but he did not reply. As discussed in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), “[t]he duty to assist is not always a one-way street” and if the Veteran desires help with his claims, he must cooperate with VA’s efforts to assist him. Further, the Veteran stated during a phone conversation in December 2020 that he did not have the court records and would not be submitting any new evidence. As such, the Board finds that VA has substantially complied with the 2019 remand directives to the extent possible. Stegall v. West, 11 Vet. App. 268, 271 (1998). Other than as immediately discussed, the Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. 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). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of the Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). 1. Whether new and material evidence has been received to reopen a claim for right knee and left knee disabilities As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen the previously denied claims for the Veteran’s left knee and right knee disabilities. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See 38 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for the Federal Circuit (Court) has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The Court has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When deciding as to whether received evidence meets the definition of new and material evidence, the Board should be cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. A. Finality By way of history, the Veteran’s initial claim for service connection for his right knee and left knee disabilities was denied in a February 2013 rating decision. In that decision, the RO denied the claims because the evidence did not show that the conditions began in or were caused by the Veteran’s military service. The Veteran was notified of the decision on February 25, 2013, but he did not appeal. However, as evidence was received within a year of that decision, the Board will consider whether it was new and material with respect to the bilateral knee claim. The Federal Circuit has held that if VA receives new evidence within the appeal period of an AOJ decision, it must be considered according to 38 C.F.R. § 3.156(b). If such consideration is not performed, the underlying claim does not become final but rather it remains pending. Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). Here, the Veteran filed a new claim for diabetes and asthma in July 2013, and in connection with that claim, submitted private medical records. In relation to his knees, while some new records were received, they were not material, as they did not suggest a link to service. Although the Veteran submitted records from private care centers showing he received treatment for his knees, there was no suggestion in the medical records of a link between these disabilities and the Veteran’s service, which was the reason the claim was denied. Therefore, even considering all new evidence submitted within that year, the Board still finds the February 2013 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. B. New and Material Evidence In April 2016, the Veteran filed another claim, in part, for service connection for his bilateral knees. After reviewing the evidence associated with the claims file since the last final decision, the Board finds that new and material evidence sufficient to reopen the claim has not been received. Some of the medical evidence submitted since the 2013 rating decision is considered new, as it was not of record at the time of the prior denial; however, it is not material to the Veteran’s claim as it simply showed that the Veteran continued to receive treatment for his knees and there is no evidence of a potential nexus between his current right knee and left knee disabilities to service. These facts were already established at the time of the prior denial and the submission of new evidence showing the same does not raise a reasonable possibility of substantiating the Veteran’s claim. For example, the Board acknowledges the Veteran’s 2019 Board hearing testimony. However, although the Veteran stated he slipped on the flight deck and injured his knees when he fell and had to have patella replaced, the medical records indicate that this did not happen until 2009. Thus, his statements are not new, because they are cumulative and redundant of evidence previously of record. Further, the Veteran testified that he went to Court with a case against Union County and the prosecutor argued his conditions were pre-existing due to his military service and the judge ruled in favor of the prosecutor and that his knee conditions were preexisting conditions from the military. However, as discussed above, the claim was remanded in 2020 to provide the Veteran with the opportunity to provide these records, and despite multiple attempts to the Veteran requesting this information, he failed to reply and stated he was not going to be submitting any new evidence. Therefore, there is no evidence supporting his assertions. Since 2013, the Veteran has not offered new and material evidence supporting the left knee and right knee disabilities are due to military service, and there has been no competent evidence submitted suggesting the bilateral knee disabilities are due to service, which was the element missing at the time of the 2013 rating decision. Thus, for the foregoing reasons, the Board finds that the record does not contain new and material evidence sufficient to reopen the claim of entitlement to service connection for the right knee and left knee disabilities, and that the petition to reopen must be denied. When the issue is the basic elements of service connection, such as nexus to service, the question of whether the claim is warranted on the merits largely overlaps with the issue of whether the new evidence is new and material. Jackson v. Principi, 265 F.3d 1366, 1370-71 (Fed. Cir. 2001). As the Veteran was on notice that he needed to establish nexus to service, he is not prejudiced by the fact that the Board has concluded the lack of evidence on this point leads to a refusal to reopen the claim, rather than a rejection of his reopened claim on the merits. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Certain chronic diseases, such as diabetes mellitus, may be service-connected on a presumptive basis if manifested to a compensable degree in a specific period of time post service. See 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Additionally, Veterans who served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307. Service incurrence for certain diseases, including diabetes mellitus, will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicide agents. Id. “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, that is, within the land borders, including the inland waters, of Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii). In June 2019, following the U.S. Court of Appeals for the Federal Circuit’s holding in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act). The BWN Act adds section 1116A to title 38 of the United States Code which extends the existing Agent Orange Act of 1991 presumption codified at section 1116 to veterans who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. The BWN Act defines “offshore” as a geographical area “not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting eleven points of latitude and longitude listed in an included table.” Id. Accordingly, to show service in the Republic of Vietnam and establish entitlement to presumptive service connection due to alleged herbicide exposure, the evidence must show that the Veteran served within the land borders (including the inland waters) or served on a ship within 12 nautical miles seaward of the line defined by the BWN Act. If the 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 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 is established, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. 2. Service connection for diabetes mellitus Here, the Veteran argues that his diabetes mellitus type II (diabetes) is due to his military service, and that he was exposed to herbicide agents when he was allegedly near Vietnam while on board the U.S.S. Kitty Hawk. He also argued that the U.S.S. Kitty Hawk had “residual” herbicide agent exposure from when it had been in the territorial waters of Vietnam prior to his service. For the reasons set forth below, the Board finds that the preponderance of the evidence demonstrates that the Veteran was neither present in Vietnam, including its 12-mile territorial waters, nor exposed to herbicide agents in some other geographical location. In addition, the Board finds that the preponderance of the evidence demonstrates that the Veteran was not exposed to herbicide agents by direct contact, residual contact, or by claimed transportation of the substance aboard a naval ship, and as such, the Veteran’s claim for service connection for diabetes, to include as due to exposure to herbicides, is not warranted. A November 2020 VA Formal Finding determined there was insufficient evidence to concede exposure to herbicides (Agent Orange). The Research response following review of deck logs and command histories states that the Veteran was assigned to the U.S.S. Kitty Hawk between September 30, 1974 and October 4, 1975. It was noted that the U.S.S. Kitty Hawk returned from its Western Pacific deployment in July 1974 and did not deploy for the remainder of the year and it did not conduct combat or other operations in the waters off of Vietnam in 1974. The 1975 command histories show the U.S.S. Kitty Hawk departed San Diego in May 1975 for Hawaii, and departed there in June 1975 for Western Pacific deployment, to include operations and training in the South China Sea in Subic Bay, Republic of the Philippines and in the Philippines Sea as well as in the Sea of Japan. It was noted that the U.S.S. Kitty Hawk had Ports of Call in Subic Bay, Hong Kong, and in Japan, and eventually returned to San Diego in December 1975. Based on research and histories, it was further noted that the Kitty Hawk did not conduct combat operations in the Republic of Vietnam War Zone during 1975. In addition, the Veteran has not provided information that he was performing any duties that would have put him in contact with herbicide agents while he was on board the U.S.S. Kitty Hawk. Moreover, none of the locations where the U.S.S. Kitty Hawk docked while the Veteran was on board are presumed to have been contaminated by herbicide agents; therefore, the Veteran’s mere presence in the Philippines, Hong Kong, and Okinawa is not sufficient to establish exposure to herbicide agents. Finally, the Veteran’s assertion that he was exposed to Agent Orange from being on the U.S.S. Kitty Hawk as it had been in the territorial seas of Vietnam prior to his service on that ship also does not support his claims of exposure. He does not say he ever came into contact with or touched any containers of Agent Orange or that he ever saw it but rather that he had “residual exposure” to Agent Orange. He is not competent to conclude that the ship was actually contaminated by herbicide agent residues, and he has presented no evidence to support such an assertion. There is no presumption of "secondary exposure" based on serving on a ship that was previously within the territorial waters of Vietnam. The "second-hand" exposure alleged by the Veteran is too remote and attenuated to support a finding of actual exposure. As such, the Board finds that the Veteran is neither presumed, nor upon facts found, to have been exposed to herbicide agents. Accordingly, after a thorough review of the record, the Board finds that service connection is not warranted for the Veteran’s claimed diabetes being due to exposure to herbicides on a presumptive basis because, although the Veteran served on board a Naval ship between 1974 and 1975, the Board finds that the preponderance of the evidence demonstrates that the Veteran was not present in the Republic of Vietnam and that he was not present on a ship that docked, harbored or transited through the 12-mile territorial waters of Vietnam while he was aboard. Significantly, the November 2020 letter from the National Archives does not simply state that the ship the Veteran served on did not dock in Vietnam; it states that the ship was not operating in Vietnam waters at all during the Veteran’s service on board. Procopio, 913 F.3d. at 1380-81. Therefore, not having served in the Republic of Vietnam, he is not presumed to have been exposed to an herbicide agent in Vietnam. See 38 U.S.C. § 1116(f). Nevertheless, the Federal Circuit has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can otherwise be established. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). While the Board is not limited in its analysis to this theory of entitlement, the Board finds that the record is also against an award of service connection under any other theory of entitlement. Here, the Board notes that it is not in dispute that the Veteran has type 2 diabetes. However, the evidence does not show that type 2 diabetes was manifested in service. The Veteran’s STRs are silent for complaints, treatment, findings, or diagnoses related to type 2 diabetes, and he does not allege that the claimed diabetes manifested during (or within a year following) his service. He has not alleged he had any early manifestations/symptoms of diabetes during service. Post-service treatment records first show diagnosis of and treatment for diabetes in 2006, over two decades since his last period of active duty. Consequently, service connection for diabetes on the basis that such disease became manifest in service and persisted, or on a presumptive basis (as chronic diseases under 38 U.S.C. §§ 1112, 1137) is not warranted. Although diabetes is a chronic disease listed in 38 C.F.R. § 3.309(a), there is no evidence in the record of post-service continuity of diabetes symptomatology; the Veteran has not alleged that symptoms of diabetes were manifested in service and have been continually manifest since. There is also no probative and competent evidence indicating that the current diabetes mellitus was incurred in or otherwise related to his active service. There is no indication in his post-service medical records that his diabetes mellitus, diagnosed many years after his second period of service, is directly related to service (other than by virtue of alleged exposure to Agent Orange). The lengthy interval between service and the earliest post-service clinical documentation of a diagnoses of type 2 diabetes is of itself a factor for consideration against a finding of service connection for such disabilities/diseases. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving a claim). While a Veteran is competent to report treatment and symptoms of a disorder, he is not competent to medically attribute any in-service symptom or incident to a current disorder. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran is not competent to specify that his current diabetes mellitus is related to his active service, as such would constitute a medical conclusion, which he is not competent to make. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges that the Veteran has not been afforded a VA examination to assess the etiology of his diabetes. However, a remand for a VA examination is not warranted in this case. The Veteran has consistently alleged that his diabetes is due to in-service exposure to herbicides. While there is evidence that the Veteran currently has diabetes, the evidence does not establish that he had symptoms of diabetes during his service, nor does he so claim, and there is no evidence of presumed or actual exposure to herbicides, nor any other in-service event. Thus, there has been no trigger to the VA’s duty to assist in providing the Veteran with an examination, and an examination is not required. See 38 U.S.C. § 5103A (a)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that the preponderance of the evidence is against the claim for entitlement to service connection for diabetes mellitus, type II. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. 3. Service connection for asthma/respiratory condition The Veteran also argues that he has asthma/respiratory condition that is due to service, specifically due to his alleged exposure to herbicide agents. Upon review of the evidence, the Board finds that the preponderance of the evidence is against the claim for service connection for asthma. As stated above, the evidence does not indicate that the Veteran was exposed to herbicides, to include Agent Orange, during service. In addition, asthma is not presumptive diseases associated with herbicide agent exposure, and therefore, presumptive service connection would not be warranted. Regardless, the Board finds that asthma was not incurred in or caused by active service. Service treatment records do not show complaints, treatment or diagnoses of asthma. Rather, the Veteran consistently denied having asthma or symptoms of a respiratory condition in service. For example, in October 1972, May 1978, May 1981, May 1982, and June 1984, he marked “no” on reports of medical history to any asthma or shortness of breath. Further, within various submissions and within the 2019 Board hearing testimony, the Veteran has not otherwise contended that his respiratory condition was directly caused by active service outside the claimed exposure to herbicide agents. The only other evidence of record supporting the Veteran’s contentions are his personal statements, which do not establish the required nexus between any respiratory pathology and his military service. The Board notes that the Veteran has not been afforded a VA examination as to whether diagnosed asthma was incurred in or caused by active service. However, a remand for a VA examination is not warranted in this case. Although the record contains competent evidence of a current disability, the weight of the evidence does not indicate the disabilities may be associated with the Veteran’s service. McLendon, 20 Vet. App. 79. There is no medical evidence or credible lay evidence of any in-service symptoms or event, and the Veteran’s lay statements as to the etiology of his current disabilities are insufficient to trigger the VA’s duty to assist by providing the Veteran with an examination. See 38 U.S.C. § 5103(d); McLendon, 20 Vet. App. at 83; Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a conclusory generalized lay statement suggesting a nexus between a current disability and service does not suffice to warrant a VA examination). Given the above, the Board finds that service connection is not warranted for asthma/respiratory condition, to include as secondary to exposure to alleged herbicide agents. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.