Citation Nr: 21025551 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-12 100 DATE: April 28, 2021 ORDER Service connection for ischemic heart disease (IHD) is denied. Service connection for diabetes mellitus, type II (DM) is denied. Service connection for peripheral neuropathy (PN), right lower extremity (RLE), is denied. Service connection for PN, left lower extremity (LLE), is denied. Service connection for a respiratory disorder is denied. Service connection for a disorder manifested by pulmonary emboli is denied. Service connection for a skin disorder is denied. Service connection for an acquired psychiatric disorder is denied. Service connection for obstructive sleep apnea (OSA) is denied. Service connection for erectile dysfunction (ED) is denied. FINDINGS OF FACT 1. The Veteran had active duty from October 1965 to October 1967, including service in the Republic of Panama from April 1966 to September 1967; he did not serve in the Republic of Vietnam and was not shown to have been exposed to tactical herbicides during service. 2. IHD and DM did not have their onset during service or within one year of service discharge and are not otherwise etiologically related to service, to include as due to herbicide agent exposure. 3. A diagnosis of PN of either the right or left lower extremity hs not been shown. 4. A respiratory disorder nor a pulmonary embolism were shown in service; a current respiratory disorder, diagnosed as chronic obstructive pulmonary disorder (COPD) and bronchitis, or disorder manifested by pulmonary emboli is not causally or etiologically related to service. A disorder manifested by pulmonary emboli is not causally or etiologically due to a service-connected disability. 6. A skin disorder, diagnosed as psoriasis, was not shown in service and is not causally or etiologically related to service. 7. An acquired psychiatric disorder, diagnosed as depression, was not shown in service and is not causally or etiologically related to service. 8. A sleep disorder did not clearly and unmistakably preexist service. A sleep disorder, diagnosed as OSA, was not shown in service and is not causally or etiologically related to service or to a service-connected disability. 9. ED was not shown in service and is not causally or etiologically related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. IHD was not incurred in service and is not presumed to have been incurred in service, to include as due to herbicide exposure. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. DM was not incurred in service and is not presumed to have been incurred in service, to include as due to herbicide exposure. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. PN of the RLE was not incurred in service and is not presumed to have been incurred in service, to include as due to herbicide exposure. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 4. PN of the LLE was not incurred in service and is not presumed to have been incurred in service, to include as due to herbicide exposure. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 5. A respiratory disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 6. A disorder manifested by pulmonary emboli was not incurred in service or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 7. A skin disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 8. An acquired psychiatric disorder was not incurred in service or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 9. OSA was not incurred in service or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 10. ED was not incurred in service or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2019, the Veteran and his wife testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In September 2020, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Turning to the applicable laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). IHD and DM In addition to the above law and regulations, service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are associated with herbicide exposure include DM and IHD. 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran has not claimed, and the record does not reflect, that he served in the Republic of Vietnam. Rather, he has claimed exposure to herbicides while serving in the Republic of Panama. Specifically, VA has adopted specific procedures to determine whether a claimant was exposed to herbicide agents in locations other than the Republic of Vietnam, Korea, and Thailand. See VA’s Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 7(a) (March 27, 2018). The Board is not bound by VA’s Adjudication Manual, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) but it “is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases.” Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). If sufficient information was not already provided to verify exposure to herbicides, the M21 requires that the Veteran be asked to provide further details and allowed 30 days to respond to the request. Once additional information has been received, VA is to request verification of the exposure, or if no such information is received, proceed with adjudicating the claim. In this case, in December 2020, the Agency of Original Jurisdiction (AOJ) attempted to verify the Veteran’s herbicide exposure with the Military Records Research Center (MRRC) but all requests yielded the response that MRRC could not research the claim “because the circumstances of exposure were not provided” and MRRC referred the AOJ to the M21. The AOJ then requested additional details from the Veteran about his exposure to herbicides in a December 2020 letter. No response was received. Tactical herbicides, described as herbicide agents in VA regulations, are distinguished from commercially available herbicides approved by the Armed Forces Pest Control Board for use in routine base maintenance and vegetation control measures during this time. See October 2011 VA Memorandum for the Record: Herbicide use in Thailand during the Vietnam Era (associated with the claims file). At the November 2019 hearing, the Veteran recalled that the Panama Canal Zone was a jungle and that he saw tankers, and something being sprayed by persons wearing backpack sprayers. While he is competent to describe witnessing spraying of a chemical agent in Panama, he is not competent to assert that such agents were tactical herbicides. Accordingly, the evidence does not show that he was exposed to herbicide agents during his service in Panama. Additionally, DM and IHD are not otherwise shown to have been directly related to active duty. At the November 2019 hearing, the Veteran testified that he was diagnosed with DM in service but not treated at that time. However, STRs are silent for any reference to IHD or DM. Chest X-rays were normal and blood sugar results were negative at the separation examination. Post-service treatment records first document a diagnosis of IHD, specifically coronary artery disease in 1997 with a history of myocardial infarction and coronary artery bypass graft noted in 2005, and DM was diagnosed in 2004, all decades after discharge. Such evidence weighs against a finding that such conditions first manifested during service or within one year of service discharge. Moreover, such records do not support service connection on the basis of continuity of symptomatology since service. It is also highly probative that such records do not otherwise indicate that the claimed conditions are related to service. The Veteran submitted evaluations by private physicians reflecting the diagnoses of these disabilities, but the physicians did not offer opinions as to the etiology of these disorders. Therefore, the competent evidence also does not establish that IHD and DM are directly related to service. Based on the above, the medical evidence does not support the claims for IHD or DM. PN of the RLE and LLE The Veteran contends that PN of the lower extremities is due to DM. In addition, PN may be considered a chronic disease (as an organic disease of the nervous system) for which presumptive service connection may be considered, and early onset PN is a presumptive disorder for herbicide exposure. However, the medical evidence does not reflect a current diagnosis of PN of the right and left lower extremity for which service connection may be granted on any basis. In November 2019, the Veteran testified that he had been diagnosed with PN by a private physician, but while he has provided treatment notes that reflect treatment for carpal tunnel syndrome in 1994, he has not provided or identified with specificity treatment notes that reflect a diagnosis of PN of either lower extremity. The Veteran also asserted that he received disability benefits from the Social Security Administration (SSA) for his back, legs, feet, and heart; however, a request of SSA for the records associated with those benefits yielded the response that they had been destroyed, and the nature of a disability of the legs found by SSA was not described. A September 2015 private evaluation for DM indicated that while the Veteran had complications of retinopathy and nephropathy, there was no neuropathy present. Accordingly, a current diagnosis of PN of the right and left lower extremities is not shown. Absent a current diagnosis or functional impairment, there is no disorder for which service connection may be granted. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the medical evidence does not support the claims as there is no present disability. Respiratory Disorder and Pulmonary Embolism The Veteran contends that he developed a respiratory disorder and pulmonary emboli as a result of exposure to diesel fumes, gas fumes, asbestos and other exposures in service. In addition to the above defined theories of entitlement, service connection may be granted for a disability related to asbestos exposure during service if evidence demonstrates that the veteran was actually exposed in service and that a disease usually associated with such exposure resulted. Initially, the post-service medical evidence reflects diagnoses of COPD and bronchitis. Regarding pulmonary embolism, medical records show that the Veteran experienced pulmonary emboli in both lungs in 2003; however, a chronic clotting disorder or other disorder associated with these emboli is not shown. The July 2015 respiratory examination specifically stated that the disorder was asymptomatic after resolution of pulmonary thromboembolism. Nevertheless, the medical evidence also shows that the Veteran was on a chronic anticoagulant. Therefore, a current disability is met for these claims. As to an in-service incurrence, the STRs are silent for complaint, treatment, or diagnosis associated with any respiratory disorder or pulmonary embolism. At the November 2019 hearing, the Veteran asserted that he went to sick call in July 1966 for respiratory complaints and received an inhaler. However, the only reference in STRs indicative of any respiratory issue is to a sore throat in August 1966. Further, no notation of a respiratory disorder or pulmonary embolism was made in the separation medical history or clinical examination. The chest X-ray was within normal limits. Therefore, the medical evidence does not support an in-service incurrence. As to a nexus, the evidence does not establish a nexus between service and a current respiratory disorder or pulmonary embolism. The July 2015 private evaluation noted the Veteran’s current diagnoses and medical history but did offer a nexus to service. No other health care provider has established a connection between service and the respiratory disorders. Accordingly, the third element of service connection is also not met. The Veteran’s personnel records reflect that he was a tracked vehicle mechanic in the U.S. Army. Pursuant to the M21, certain Navy Military Occupational Specialties (MOS) have been determined to have resulted in likely asbestos exposure. VA’s Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section I, Paragraph 7(a) (May 23, 2018). However, for other branches of service, asbestos exposure is determined based on review of the evidence of record. In this case, while the Veteran has asserted exposure to asbestos, he has offered no particulars as to how that exposure occurred. Service personnel records also do not show any exposure to asbestos or suggest any detail or duty that would result in asbestos exposure. Moreover, the medical evidence, including the July 2015 private respiratory evaluation, does not document asbestos exposure or disease related to such exposure. Thus, absent any credible indication he has been diagnosed with an asbestos-exposure-related disease or was likely exposed to asbestos during his service, this theory of entitlement does not further trigger the duty to assist to further develop the claim. Acquired Psychiatric Disorder At the November 2019 hearing, the Veteran raised the claim of service connection as secondary to his physical disorders, as well as related to service. Turning to the evidence, post-service treatment notes reflect a diagnosis of depression. Therefore, the criterion of a current diagnosis is met for this claim. However, service connection is not in effect for any disability. Accordingly, there is no primary service-connected disability which may be found to have caused or aggravated the Veteran’s psychiatric symptoms. For this reason, service connection on a secondary basis is not warranted. Moreover, STRs are silent for any complaints, symptoms, or diagnosis of depression or any acquired psychiatric disorder. In addition, the Veteran has not offered any specific details regarding in-service onset of his symptoms. The direct service connection criterion of an in-service incurrence is also not met. Finally, the competent evidence does not associate the Veteran’s acquired psychiatric disorder with service, and the criterion of a medical nexus is also not met. Therefore, as the second and third elements of direct service connection are not met, service connection for an acquired psychiatric disorder on a direct basis is not warranted. Sleep Apnea The Veteran contends that OSA developed as secondary to his acquired psychiatric disorder. He also testified in November 2019 to snoring in service and being awoken by another servicemember because he had stopped breathing, thereby raising a claim of service connection on a direct basis. To the extent that the Veteran reported a pre-service history of frequent trouble sleeping, the enlistment examination reflected a normal clinical evaluation of all systems so he was considered sound upon entrance to active duty and the claim is one for service connection rather than aggravation. The medical evidence reflects that the Veteran has had a diagnosis of OSA since at least 2005. Therefore, the first element of service connection – a current diagnosis – is met. As to an in-service incurrence, the STRs are absent of complaints of, treatment for, or a diagnosis of a sleep disorder. As such, the medical evidence does not document in-service sleep disorder or OSA. As to medical nexus, no health care provider has ever established a connection between the Veteran’s OSA and service. Therefore, the medical evidence does not support direct service connection. As to OSA on a secondary basis, the Veteran is not service connected for a psychiatric disorder as it was denied above. Thus, service connection for OSA as secondary to an acquired psychiatric disorder is denied. In sum, the medical evidence does not support service connection for OSA on either a direct or secondary basis. Skin Disorder As to a current disorder, the post-service treatment records do not reflect a diagnosis of a skin disorder; however, at the November 2019 hearing, the Veteran testified to receiving private treatment for his skin disorder, and a private evaluation by the treating physician submitted in September 2015 diagnosed psoriasis. Therefore, a current disorder is shown and the first element of service connection is met. As to an in-service incurrence, at the November 2019 hearing, the Veteran testified that he sought treatment in service for psoriasis once per month. The STRs do not reflect such treatment or any complaint, treatment, or diagnosis related to a chronic skin disorder. Nevertheless, as the Veteran is competent to describe symptoms he can readily observe, such as skin rashes or lesions, the criterion of an in-service incurrence is met. As to a medical nexus, a September 2015 evaluation found that psoriasis was diagnosed in 2007, dating the onset to many years after service. The evaluation documented subjective reports from the Veteran that he had had psoriasis for 10 years, dating the onset to 2005. A November 2019 submission from the private physician stated that the Veteran developed psoriasis in service, implying an opinion that the current psoriasis began in service, but did provide a rationale for any such opinion or address the reported onset of psoriasis decades after service in or around 2005 to 2007. Therefore, this medical opinion is assigned less probative value. Accordingly, the medical evidence does not support a finding that the Veteran’s skin disorder is due to service. ED The Veteran contends that he has ED secondary to medication he takes for service-connected disabilities. In September 2015, a private clinician diagnosed the Veteran with ED. Therefore, a current diagnosis is shown. As to an in-service incurrence, the STRs do not reflect symptoms or diagnosis of ED, and the Veteran does not assert otherwise. As ED was not shown in service, the medical evidence does not support service connection on a direct basis. As to secondary service connection, service connection is not in effect for any disability. Hence, there is no primary disability, which either on its own or through medication, may be deemed the cause or, or aggravating factor of, the ED. Thus, the evidence does not support service connection for ED on a direct or secondary basis. The Board has considered the Veteran’s lay statements and sworn testimony that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses; however, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims and there is no doubt to be otherwise resolved. As such, the appeals are. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. M. Schaefer, 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.