Citation Nr: 21026298 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 13-35 314 DATE: April 30, 2021 ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for a right foot disorder is denied. Entitlement to service connection for shaking of the hands, claimed as due to lead poisoning and fume exposure, is denied. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) prior to April 2, 2018 is denied. REMANDED Entitlement to service connection for loss of balance and dizziness, claimed as due to lead poisoning and fume exposure, is remanded. Entitlement to service connection for erectile dysfunction, claimed as due to lead poisoning and fume exposure, is remanded. Entitlement to service connection for headaches, claimed as due to lead poisoning and fume exposure, is remanded. FINDINGS OF FACT 1. The Veteran’s diabetes did not originate in service or until years thereafter, and is not otherwise etiologically related to service. 2. The Veteran’s right foot disorder did not originate in service or until years thereafter, and is not otherwise etiologically related to service. 3. The Veteran’s tremors did not originate in service or until years thereafter, and are not otherwise etiologically related to service. 4. The Veteran's service-connected disabilities have not been shown to preclude him from gainful employment prior to April 2, 2018. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for a right foot disability are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for shaking of the hands, claimed as due to lead poisoning and fume exposure are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the from March 1962 to March 1966. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 Regional Office (RO) rating decision. The issue of entitlement to a TDIU was first denied in a November 2013 Statement of the Case. The Veteran testified before the undersigned at a videoconference hearing in February 2017; a transcript is of record. The matters were previously remanded by the Board for additional development in October 2017. The Board notes that the October 2017 remand directed the RO to assist the Veteran in obtaining outstanding medical records from Sutter Medical Foundation. The RO attempted to obtain those records and was informed that a special release is required by the facility. The release was sent to the Veteran and not returned. VA has met its duty to assist in obtaining those records and may proceed with adjudication. Service Connection 1. Entitlement to service connection for diabetes mellitus is denied. The Veteran contends that his diabetes mellitus is due to service Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain diseases 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 exposure during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(iii). 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). Diabetes mellitus is not included in the list of enumerated diseases. The presumptive regulations, however, do not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). If the Veteran did not serve in the Republic of Vietnam during the Vietnam era, then other exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related disease under 38 C.F.R. § 3.309 (e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once other exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309 (e) for herbicide-related diseases is applicable. Service connection for certain chronic diseases, to include diabetes mellitus, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree within one year from the date of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required. 38 C.F.R. § 3.303 (b). Continuity of symptoms may establish service connection only for those diseases listed in 38 C.F.R. § 3.309 (a). 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act) was recently signed into law, which extends the presumption of exposure to herbicide agents to those Veterans who served in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. The BWN Act codified the holding of Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), which was that “Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to § 1116’s presumption if they meet the section’s other requirements.” See VAOPGCPREC 3-2019 (Dec. 13, 2019), at 2 (“The BWN Act codified the Procopio holding”). Moreover, Congress also intended the BWN Act to “ensure that VA defines ‘the Republic of Vietnam’ broadly.” Id. at 12 (citing H.R. Rep.116-58, at 11 (May 10, 2019)). The service treatment records are silent for any reference to diabetes mellitus. The Veteran in fact does not contend that his diabetes was present in service. He testified that he had diabetes for about 10 years or more at his February 2017 Board hearing. The Veteran’s theory of entitlement is unclear, but he does suggest exposure to herbicides while in the waters off the Republic of Vietnam on a tug boat delivering a barge. The Board notes, however, that while the U.S.S. Shakori, the ship he was on, did help deliver the Royal Navy lift craft ALC-24 in February 1966, this was not in the waters of Vietnam, but rather was a delivery of the barge to Subic Bay, Philippine Islands. The Veteran was not aboard a ship during his service that is recognized as a ship associated with exposure to herbicides during the Vietnam Era. In short, the Veteran did not serve in the waters of Vietnam and was not exposed to herbicides during service. There is no competent evidence of diabetes in service or until decades after service, and no competent evidence linking the diabetes to service. To the extent the Veteran intends to use his own opinion to establish such a link, the Board finds that the matter of whether an insidious disease process such as diabetes, which in this case developed decades after service, is etiologically related to service is beyond what a layperson could reasonably be expected to competently address. The Veteran has not been provided a VA examination to address the etiology of his diabetes. In this case, the Veteran is not presumed exposed to herbicides, and the record does not otherwise establish exposure to herbicides or any other in-service event, disease or injury. Consequently, a VA examination or opinion is not necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that the preponderance of the evidence is against the claim. Under such circumstances, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a right foot disability is denied. The Veteran contends that during service, he was carrying a heavy toolbox up a steel ladder in he dropped it on his right foot. He states that his right foot has bothered him since. He testified that he did not believe his right foot condition was due to lead poisoning. The Veteran attended a VA examination in April 2018 to determine the nature and etiology of his claimed foot disorder. The examiner diagnosed the Veteran with bilateral pes planus, hammer toes, and arthritis of the feet. Thus, the first element of Shedden is met. With regard to whether the alleged in-service event occurred, service medical records from November 1964 show the Veteran reported to sick call complaining of soreness in his left foot after dropping a toolbox on his foot. The Veteran asserts that the report is incorrect, and it is supposed to be his right foot. There was no fracture on x-ray. The Board sees no reason to believe that the records incorrectly refer to the left foot instead of the right. Even assuming, however, that the injury was to the right foot, the April 2018 VA examiner opined that the Veteran’s foot disability was less likely than not incurred in or caused by service. He noted that the Veteran’s service-treatment records showed a left foot injury, and that the imaging showed no fracture. The examiner noted that there was no particular injury to the fifth ray of either foot, instead there was a symmetric degenerative arthritis of both feet with severe pes planus. The examiner correctly noted that pes planus was noted on entry to service. The Board notes that the presumption of soundness does not apply to conditions noted upon entry, but service connection may still be granted for aggravation of such conditions in service. However, the examiner noted that there was no note of foot problems on separation thus nothing to suggest that military service aggravated the condition beyond its natural progression. The examiner further noted that the Veteran was 73 years old and worked most of his life on his feet, and that the degenerative changes were not disproportionate to what would be expected in the 52 years since his discharge from service. The Board affords great probative weight to the opinion of the April 2018 VA examiner as he applied his medical expertise after examining the Veteran and reviewing the file. To the extent the Veteran relates his right foot disability to service, the Board acknowledges that the Veteran is competent to report pain in his foot. However, he has not been shown to possess the medical expertise necessary to diagnose such a particular foot condition or attribute it to a particular etiology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Therefore, the Veteran's statements are less probative than the competent medical evidence of record. Further, the record does not show that the Veteran had right foot arthritis or hammer toe within a year of separation from service. As such, the Board finds that the most probative evidence of record does not show that the Veteran’s current right foot disability is at least as likely as not incurred in or caused by service, or had its onset within a presumptive period. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for shaking of the hands, claimed as due to lead poisoning and fume exposure, is denied. The Veteran contends that he developed tremors from lead poisoning and exposure to fumes while welding as part of his duties as a diesel engine mechanic. While his service treatment records do not document lead poisoning, the Board observes that his duties may have exposed him to welding fumes, including from lead. A VA examination from April 2018 shows a diagnosis of essential tremor. Thus, the first element of Shedden is met. The examiner stated the diagnosis began in 2012. The Veteran also stated that the condition began around 2012. The Veteran has not alleged that his tremors began in service. As noted above, the Veteran was likely exposed to lead and fumes while performing his duties in service. Moreover, the Veteran submitted internet articles in March 2011 that illustrated that exposure to fumes such as manganese from welding can lead to tremors and symptoms similar to Parkinsonism. The articles further stated that high levels of exposure can lead to encephalopathy, with tremors being associated therewith. With regard to whether the Veteran’s current tremor is linked to his potential in-service exposure, the April 2018 VA examiner opined that the Veteran’s current disability was less likely than not incurred in or caused by service. The examiner reasoned that the Veteran’s tremor did not have its onset until 2012, and that no studies have found a consistent association with a remote history of toxic fume exposure. The examiner further noted that the Veterans exposure would have been 40 years prior to onset of symptoms, and that he had never been shown to have high levels of any particular toxin and thus there is insufficient evidence to corroborate his claim. The Board affords great probative weight to the findings of the April 2018 VA examiner, as he examined the Veteran and applied his medical expertise. The Board notes that the examiner did not specifically address the articles submitted by the Veteran. However, his rationale encompasses the associations made between the Veteran’s exposure and his current condition that is made by the articles. Thus, the medical opinion is adequate for decision-making purposes. While the Veteran and lay witnesses have contended that his disability is due to lead poisoning and fume exposure, none possess the medical expertise necessary to attribute the Veteran’s condition to a particular etiology. The record does not contain a competent medical opinion associating the Veteran’s tremors to possible lead of fume exposure in service. Thus, regardless of whether the Veteran’s exposure is conceded, the evidence does not show that his current disability is linked to that exposure. In light of the above, the Board finds that the preponderance of the evidence is against the claim. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 4. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) prior to April 2, 2018 is denied. Initially, the Board notes that from April 2, 2018, the Veteran has a 100 percent combined disability rating, as well as entitlement to special monthly compensation under 38 U.S.C. § 1114 (s) due to a disability rated at 100 percent disabling and another disability independently ratable at 60 percent. Thus, a TDIU from that date is moot, as the Veteran is in receipt of the maximum benefits available. Thus, the only period for consideration is prior to April 2, 2018. The Veteran initially filed a claim for a TDIU in July 2010, although it was not adjudicated until a November 2013 Statement of the Case. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F. 3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. §§ 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). When the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, a Veteran may be entitled to a TDIU on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). During the period on appeal, the Veteran is service connected for a left nephrectomy associated with bladder cancer, rated under DC 7500 at 60 percent from July 7, 2017, and 60 percent from September 29, 2017. He is also service connected for bladder cancer, rated at 20 percent disabling under DC 7528 until December 16, 2015, and it is rated at 60 percent therefrom. He has two separate ratings at 10 percent each for bilateral hearing loss (DC 6100) and tinnitus (DC 6260). Lastly, he has a noncompensable rating for a surgical scar associated with bladder cancer from December 16, 2015. The Veteran has a combined disability rating of 40 percent prior to December 16, 2015, 70 percent prior to July 7, 2017, and 90 percent therefrom. The Veteran does not meet the schedular criteria for a TDIU prior to December 16, 2015 and meets the schedular criteria therefrom. Regardless of whether the Veteran met the schedular criteria during a particular period, the crucial question before the Board is whether the Veteran’s service-connected disabilities prevent him to securing or maintaining a substantially gainful occupation, taking into consideration his past work and education. The Veteran’s application for a TDIU indicated that he has prior work experience in real estate sales for about 18 years, and he worked in security for about 2 years. He states that he last worked full-time in March 2009. He noted having applied to several jobs in 2010 with no success. He stated that he obtained his G.E.D. and has one year of college. For the period prior to December 16, 2015, the functional impact of the disabilities of bladder cancer, hearing loss, and tinnitus are for consideration. On his application for a TDIU, he stated that a loss of hearing and an inability to stand or walk for long periods prevented him from working. An October 2010 VA hearing examination stated that his hearing loss would have significant effects on his occupation. The impact was described as hearing difficulty. With regard to the Veteran’s bladder cancer, the Veteran is rated based on nighttime voiding two to three times, as supported by VA treatment records from 2009. Such impairment does not significantly impair work function and the Veteran has not contended as such. A lay witness statement stated that chemotherapy drained the Veteran’s energy in the early 2000’s, but the Board notes that the Veteran worked until 2009. The Board notes that the Veteran’s bladder cancer rating was increased to 60 percent from December 2015. An April 2018 VA examiner opined that the Veteran had been unable to work since 2009 due to cancer related problems. The examiner did not elaborate on the specific problems caused by the Veteran’s cancer conditions, and it is notable that the examination also included an evaluation of prostate cancer, which is not service connected. The Veteran’s conditions were noted to be in remission with the last treatment in 2016. The Veteran also had a kidney removal surgery in July 2017 which was service connected from that time. However, the evidence showing the functional impact of that disability, which is significant, was from April 2018, the date from which a TDIU was granted. With regard to impact on work, the examiner directed the Board to the bladder cancer report that described an inability to work since 2009. The Board does not afford great probative weight to that opinion, as the examiner did not provide supporting rationale as to why the conditions prevented the Veteran from working since 2009. Further, the Veteran himself claimed an inability to work due to hearing loss and problems walking in 2010, but had also applied for jobs during that time. The Veteran submitted lay statements indicating that his doctors told him he cannot work due to conditions impacting his knees and legs. The Board notes that the Veteran is not service connected for conditions that cause a functional impact in an ability to stand and walk. The Veteran has not alleged a functional impact due to his surgery scar. While the Veteran would have some limitations due to hearing loss, those would not be considered enough to prevent the Veteran from working, especially with reasonable accomodation as required by law. The Veteran has a past history as a real estate agent, which would provide a background in working in an office-type setting. After a review of the evidence of record, the Board finds that the claim for entitlement to a TDIU is not warranted when considered in association with the Veteran's educational attainment and occupational background. In sum, the Veteran's service-connected disabilities have not been shown to preclude him from gainful employment prior to April 2, 2018. Thus, the preponderance of the evidence is against the Veteran's claim for a TDIU. There is no reasonable doubt to be resolved as to this issue, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for loss of balance and dizziness, claimed as due to lead poisoning and fume exposure, is remanded. Entitlement to service connection for erectile dysfunction, claimed as due to lead poisoning and fume exposure, is remanded. Entitlement to service connection for headaches, claimed as due to lead poisoning and fume exposure, is remanded. The Veteran submitted internet articles in March 2011 that suggested that bladder cancer and impotence could be linked. The articles also stated that low levels of lead exposure could lead to impotence, as well as headache, and dizziness. The submissions also noted that manganese exposure form welding can cause headache. An April 2018 VA examiner opined that the Veteran’s erectile dysfunction and balance problems were not related to service because there was no evidence that diesel fumes caused such conditions. However, those opinions did not address whether the Veteran’s potential exposure to low levels of lead exposure caused those disabilities, as suggested by the Veteran’s submitted evidence. Additional VA opinions from August 2019 also found that the erectile dysfunction and balance problems were not due to service. The Veteran’s erectile dysfunction and balance problems were attributed to his diabetes. The rationale with regard to a balance impairment stated that there were no medical records confirming a diagnosis of lead poisoning. The Board notes that with regard to erectile dysfunction, the record does not contain a competent medical opinion that addresses whether the Veteran’s bladder cancer aggravated his erectile dysfunction. Further, the opinions of record do not address whether lead exposure caused the erectile dysfunction, as the rationale only mentions diesel engine fumes. With regard to balance problems, the opinions of record do not address the evidence submitted indicating that low levels of lead exposure can cause dizziness. The examiner merely noted that the Veteran was not diagnosed with lead poisoning, and it is unclear to the Board whether that also addresses potential low-level lead exposure. With regard to headaches, the April 2018 examiner found that the Veteran’s tension headaches were not related to service mainly due to the long delay in onset after service. The examiner did not address the evidence submitted by the Veteran suggesting that low level lead exposure and manganese exposure can cause headaches, as directed by the October 2017 remand. An April 2019 opinion more accurately addressed the Veteran’s contentions, stating that the headaches were less likely than not due to exposure to fumes from welding to include lead in service. The examiner reasoned that the Veteran did not report headaches in service and had never been diagnosed with lead poisoning. He further indicated that the nature of the headaches was more suggestive of a mechanical problem rather than toxic fume exposure. The Board notes that the opinion is unclear whether a reliance on an absence of lead poisoning is sufficient to denote consideration of the literature submitted by the Veteran suggesting that low levels of exposure can cause headaches. For the reasons above, the opinions of record are inadequate for decision-making purposes, and addendum opinions are necessary on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who provided the April 2019 VA opinions, or to a suitably qualified examiner if unavailable, for completion of an addendum opinion. The examiner should review the entire record on appeal to include the evidence submitted by the Veteran and consider the Veteran’s and lay witness statements as to onset. The examiner must opine as to whether: a) It is at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction was incurred in or caused by service. The examiner must address the evidence of record suggesting that low levels of exposure to lead can cause impotence. b) It is at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction was proximately due to or aggravated by his service-connected bladder cancer. The examiner must address aggravation as a separate opinion. The examiner must address the evidence of record suggesting that bladder cancer may be related to impotence. c) It is at least as likely as not (50 percent or greater probability) the Veteran’s balance problems, to include dizziness, were incurred in or caused by service. The examiner must address the evidence of record suggesting that low levels of lead exposure can cause dizziness. d) It is at least as likely as not (50 percent or greater probability) the Veteran’s headaches, were incurred in or caused by service. The examiner must address evidence of record suggesting that low levels of lead exposure and manganese exposure can cause headaches. 2. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.