Citation Nr: 21031207 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-33 895 DATE: May 20, 2021 ORDER Entitlement to service connection for a heart disability is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for a prostate disability is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran's coronary artery disease was incurred in service or is otherwise related to service. 2. The weight of the evidence is against finding that the Veteran's hypertension was incurred in service or is otherwise related to service. 3. The weight of the evidence is against finding that the Veteran's diabetes mellitus was incurred in service or is otherwise related to service. 4. The weight of the evidence is against finding that the Veteran's benign prostatic hyperplasia (BPH) was incurred in service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for a prostate disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1963 to March 1965 and from April 1965 to March 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In November 2018, the Veteran testified at a personal hearing before a Veterans Law Judge (VLJ) who has since retired. In March 2019 and August 2020, the Board remanded the issues on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. In a March 2021 letter, the Board informed the Veteran that he had the right to an additional Board hearing, but in an April 2021 response, he indicated he did not want another Board hearing before a different VLJ. The transcript has been reviewed. Service Connection The Veteran is seeking service connection for a heart disability, hypertension, diabetes mellitus, and a prostate disability, which he claims were caused by exposure to herbicide agents, including Agent Orange, or other defoliants during his service in the Republic of Korea. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Veterans who served between April 1, 1968, and August 31, 1971, in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period as determined by the Department of Defense, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, during such service. 38 C.F.R. § 3.307(a)(6)(iv). VA laws and regulations provide that if a veteran was exposed to an herbicide agent during service, certain listed diseases, including ischemic heart disease, prostate cancer, and diabetes mellitus, will be service connected on a presumptive basis. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, including coronary artery disease, hypertension, and diabetes mellitus, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) only apply to a chronic disease listed in § 3.309(a)). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The first questions the Board must consider are whether the Veteran has had the claimed disabilities during the pendency of the appeal. Post-service treatment records and VA examination reports show the Veteran has coronary artery disease, hypertension, and benign prostatic hyperplasia. The Board acknowledges VA examiners found the Veteran did not have diabetes mellitus in November 2019 and January 2021, but a May 2013 private treatment record shows diabetes mellitus was diagnosed by his treating physician. Accordingly, while there is clear evidence that the Veteran does not have this problem, the Board finds that for the very limited purposes of this decision, the Veteran has diabetes mellitus. Therefore, the remaining questions before the Board are whether the heart disability, hypertension, prostate disability, and diabetes mellitus are etiologically related to his military service. As noted, the Veteran contends he was exposed to herbicide agents, including Agent Orange, or other defoliants while serving in the Republic of Korea. The Veteran's personnel records show he served in the Republic of Korea from February 1964 to February 1965, more than 55 years ago. Accordingly, the Board finds it cannot be presumed that the Veteran was exposed to herbicide agents during service. The Board also finds that the evidence does not establish such exposure occurred on a fact-found basis. In statements and during the November 2018 Board hearing, the Veteran reported he served at the Korean DMZ and regularly walked past white barrels with painted bands of color, including orange and blue. He noted the barrels were stored in a confined area and leaked onto his feet. He also reported he saw South Korean troops spraying defoliant from trucks and helicopters. In a response received in August 2013, the Joint Services Records Research Center (JSRRC), noted the Veteran's unit records were not available, but that U.S. Army records did not document the use, storage, spraying, or transportation of herbicides when the Veteran served in the Republic of Korea. The Veteran is competent to report what he witnessed, but the Board finds he is not competent to report on whether he was in fact exposed to herbicide agents during service. Notably, he did not indicate he was somehow directly aware that the barrels contained Agent Orange or other herbicide agents. Accordingly, there is no competent evidence that shows the Veteran was exposed to herbicide agents during service. The Board therefore finds that service connection for the heart disability and diabetes mellitus on a presumptive basis due to herbicide exposure is not warranted. Furthermore, the record does not show, and the Veteran has not asserted, that the coronary artery disease, hypertension, or diabetes mellitus manifested in the first post-service year. Therefore, the Board finds that the presumption for chronic diseases found at 38 C.F.R. § 3.309(a) also do not apply to the current claims either. Service connection for the heart disability, hypertension, diabetes mellitus, and prostate disability can nonetheless be established on the basis that such disease resulted from service if affirmative evidence shows such causation. 38 C.F.R. § 3.303(d). The Veteran's service treatment records are silent for complaints, treatment, or diagnoses related to coronary artery disease, hypertension, diabetes mellitus, or a prostate condition. Notably, the Veteran was medically examined for his post-service job in June 1969, February 1974, and July 1977 and none of the claimed disabilities were noted. His heart, vascular system, and prostate were evaluated as normal. A November 1979 evaluation report notes the Veteran's blood pressure was elevated, and an October 1982 notes hypertension was diagnosed. An October 2002 private treatment record notes the Veteran reported he was unable to void. BPH was diagnosed in November 2002, and he underwent surgery to remove parts of the prostate. A September 2002 private treatment record notes an ECG and SPECT scan were negative for ischemia. July 2003 tests revealed ischemia. A March 2013 private treatment record notes the Veteran had impaired fasting blood sugar, and diabetes mellitus was diagnosed in May 2013. The Veteran was provided a hypertension and heart examinations in November 2019. The examiner opined the hypertension and coronary artery disease were less likely than incurred in or caused by the claimed in-service injury, event, or illness. She explained that there was no chronicity of care for hypertension or a heart disability following service. The Veteran was provided examinations again in October 2020. The examiner opined the hypertension and ischemic heart disease were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She noted there were no suspicions or diagnosis of hypertension or ischemic heart disease during active duty service. The Board acknowledges the examiner incorrectly noted the hypertension was not diagnosed until 2003, but finds this does not render the entire opinion inadequate. Her opinion makes clear that she thoroughly reviewed the record, and found the Veteran was not treated for a heart disability or hypertension during service or for an extended period of time following his discharge. The Veteran was also provided a VA diabetes mellitus examination in January 2021. The examiner found the Veteran did not have diabetes mellitus and opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained a chronic diagnosis had not been made and that a nexus had not been established. The examiner also opined the prostate disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the examination report, the examiner noted BPH was diagnosed in 2002 after the Veteran had difficulty voiding. The Board notes the August 2020 remand directed the examiner to address whether the Veteran's reported exposure to defoliants other than herbicide agents caused the claimed disabilities. The October 2020 examiner noted she was unable to provide a nexus opinion in relation to an unknown herbicide. She explained that the claims file did not reference any specific herbicides. Based upon the foregoing and the negative response from the JSRRC, the Board finds the examiner provided an adequate explanation of why such opinion could not be provided and that the remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has considered the Veteran's general assertions that the heart disability, hypertension, diabetes mellitus, and prostate disability are related to his service. However, because he is a layperson, he is not competent to opine on the etiology of such conditions, which is a medically complex question. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). Both service and post-service treatment records provide evidence against these claims, indicating problems that began many years after service with no connection to service. In the absence of competent evidence linking the Veteran's heart disability, hypertension, diabetes mellitus, and prostate disability to service, a preponderance of the evidence is against the claims. Accordingly, service connection for heart disability, hypertension, diabetes mellitus, and prostate disability must be denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William A. Skowronski, 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.