Citation Nr: 21032421 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-41 556 DATE: May 27, 2021 ORDER Entitlement to service connection for residuals, varicocelectomy, is denied. Entitlement to service connection for inflammation of the prostate is denied. Entitlement to service connection for insufficient sperm count with testicular biopsy is denied. Entitlement to service connection for sleep apnea, claimed as a breathing disorder is denied. Entitlement to service connection for hyperlipidemia is denied. Entitlement to service connection for diabetes mellitus, to include based upon herbicide exposure is denied. Entitlement to service connection for congestive heart failure, to include based upon herbicide exposure denied. Entitlement to service connection for cellulitis, to include based upon herbicide exposure is denied. Entitlement to service connection for residuals, tracheotomy, to include based upon herbicide exposure denied. Entitlement to service connection for chronic kidney disease, to include based upon herbicide exposure or as secondary to diabetes, is denied. FINDINGS OF FACT 1. The Veteran does not have residuals, varicocelectomy, nor has he had such disability any time incident to the claim. 2. The Veteran does not have inflammation of the prostate, nor has he had such disability any time incident to the claim. 3. The Veteran does not have insufficient sperm count with testicular biopsy, nor has he had such disability any time incident to the claim. 4. Hyperlipidemia is not a disability for VA compensation purposes. 5. Sleep apnea did not manifest in service and is not attributable to service. 6. The Veteran did not serve in Vietnam. He was not exposed to herbicide agents during his active service. 7. Diabetes mellitus, Type II did not manifest in service, or within one year of separation from service, nor is it otherwise attributable to service. 8. Congestive heart failure did not manifest in service, or within one year of separation from service, nor is it otherwise attributable to service. 9. Cellulitis did not manifest in service and is not attributable to service. 10. Residuals, tracheotomy did not manifest in service and is not attributable to service. 11. Chronic kidney disease did not manifest in service, or within one year of separation from service, nor is it otherwise attributable to service. The disability is not otherwise related to service and is unrelated (caused or aggravated) to service-connected disease or injury (to include diabetes for which service connection is denied herein). CONCLUSIONS OF LAW 1. The criteria for service connection for residuals, varicocelectomy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for inflammation of the prostate are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for insufficient sperm count with testicular biopsy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for hyperlipidemia are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for service connection for congestive heart failure are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for service connection for cellulitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for residuals, tracheotomy, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 10. The criteria for service connection for chronic kidney disease are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1962 to May 1966 and has service in the Air Force Reserves. He appeals a September 2013 rating decision. The Board remanded the matter to the Agency of Original Jurisdiction in July 2017 to: (1) clarify the Veteran's conditions and theories as to which conditions are due to herbicide exposure in Vietnam, asking him to 'supplement the record' with a statement containing his complete assertions as to the bases upon which he asserts entitlement to service connection for each disability on appeal; and (2) contact the 'appropriate federal records repository' and determine if he received combat pay or pay for service in an area of imminent danger, or any type of pay denoting service in the Republic of Vietnam, from September 1964 to November 1964. The matters have been returned to the Board. Service Connection Laws Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain enumerated chronic diseases including diabetes mellitus, calculi of the kidney, nephritis and cardiovascular-renal disease will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is also warranted for a disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). We next note that service connection for certain diseases, including diabetes mellitus and ischemic heart disease, may be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. Presumed exposure to an herbicide agent applies for a Veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307 (a)(6)(i). Service in Vietnam includes the waters of the Republic of Vietnam. Also, as will be discussed below, the Veteran's DD 214, service treatment records and personnel file do not show that he served in-country in Vietnam during the Vietnam Era. Extensive research by VA has failed to suggest any Vietnam service. The Veteran is not precluded from proving entitlement to service connection on a direct basis for the presumptive diseases. See Combee v. Brown, 5 Vet. App. 248 (1993). However, there is no other indication that he was exposed to herbicide agents. He makes no substantive argument as such. Rather, he urges that diabetes, congestive heart failure, cellulitis, chronic kidney disease and residuals of tracheostomy are due to presumed Agent Orange exposure in Vietnam. Preliminary Matters In compliance with remand directives, the AOJ sent the Veteran a letter in July 2017 explaining asking him which disabilities are included in the "myriad of other ailments" he asserts are secondary to herbicide exposure, if he otherwise, or in addition, asserts that any disability on appeal is directly related to service, or that he incurred a disability during an active period of service. He was informed that it is not clear which specific residuals he asserts have been diagnosed during the current appellate period are related to his varicocelectomy and tracheotomy. He was asked to supplement the record with a statement containing his complete assertions as to the bases upon which he asserts entitlement to service connection for each disability on appeal. He did not return the enclosed VA Form 21-4138, Statement in Support of Claim. The AOJ also sought the federal records, which again showed no evidence of service in Vietnam and noted that all records had been provided to VA. As to the Veteran's contention that he had TDY service in Vietnam, this has been exhaustively researched consistent with the requirements of all applicable law. The contentions were detailed in an April 2015 statement from the Veteran. He contends that in September 1964 he accompanied a Lt. General [N] to South Vietnam and returned in late November 1964. He was attached to the 305th Air Refueling Squadron. He also contends that he had TDY to Portugal in December 1962. The evaluation from the period July 30, 1964 to January 24, 1965 indicates that he was a message center clerk with the administrative branch. An additional duty was shown as assistant unit mail clerk. The report does not indicate a TDY. The report does indicate that he successfully completed the Records Maintenance and Disposition Course during the time frame. On the evaluation from September 7, 1962 to February 28, 1963, the report indicates that he served an overseas TDY. The evaluation from March 1, 1963 to July 29, 1963 also indicates he was on an overseas TDY. These TDY periods are not the period for which he contends he was in Vietnam. Review of the post remand personnel file shows he served an isolate tour Labrador/Goose Air Base, Canada beginning February 1965 until May 1966. His evaluation from January 25, 1965 to January 24, 1966 does not indicate any additional TDY's. The report indicates that during this time, he was able to complete his duties and an additional 15 semester hours with the University of Maryland. The documented record definitively shows there is no Vietnam service. Notably, a November 2012 memorandum to the file discusses the lack of evidence of service in Vietnam and the salient facts have not changed substantively. His contentions were thoroughly researched in connection with this appeal. The Veteran has repeatedly indicated he has no documentation of his assertions. We conclude that there is no service in Vietnam and no presumptive exposure to herbicide agents. His assertion of Vietnam service is not credible. Therefore, service connection based on presumed exposure to herbicide agents based on service in Vietnam is not for consideration. Also, he makes no alternative argument about being otherwise exposed to herbicide agents. Records were obtained related to National Guard service that included a February 1982 enlistment physical showing all body systems to be clinically normal and indicating the Veteran had no complaints. He submitted a VA form 9 in October 2018, following the issuance of the October 2018 SSOC, stating merely that the VA did not properly assess military and medical records. Service treatment records are negative as to all of these claimed conditions. His report of medical examination at separation in March 1966 shows all systems are clinically normal. He had no relevant signs or symptoms and he denied all significant medical and surgical history. In his January 2012 claim, he reported that he was diagnosed with diabetes in 1994, chronic kidney disease in 2004 and atrial fibrillation in 2005. With the exception of diabetes, private treatment records date from 2005 and do not show that these conditions or any of the conditions on appeal existed prior to these dates. There are no VA treatment records. 1. Entitlement to service connection for residuals, varicocelectomy, is denied. 2. Entitlement to service connection for inflammation of the prostate is denied. 3. Entitlement to service connection for insufficient sperm count with testicular biopsy is denied. 4. Entitlement to service connection for hyperlipidemia is denied. The private medical evidence from September 2011 notes a history of a testicular biopsy, but these records show no history or diagnosis of a varicocelectomy, inflammation of the prostate or low sperm count. Examination at the time of the 2011 notation, the genitourinary system was negative. The private medical records first hyperlipidemia in 2005. At the time of his enlistment into the National Guard in February 1982, he reported that he underwent a testicular biopsy in 1971 at Mt. Sinai Hospital, Chicago. The biopsy was negative. He reported he underwent a varicocelectomy in 1974 at Michael Reese hospital, Chicago. He was not on active duty, or on a period of inactive Federal service in the National Guard in 1971 or 1974. At the time of the February 1982 examination, the genitourinary system was clinically normal, and he denied relevant signs or symptoms. Prostate examination was normal. No hyperlipidemia was noted. None of these conditions was present during service. Moreover, there is no current disability. We find no current treatment records suggesting disability. No residuals of a varicocelectomy have been identified in the record or by the Veteran. His treating doctor J.J.C., M.D., submitted a list of current medical problems in January 2017, and none of these is listed. As to hyperlipidemia, this is because this is not a disability subject to compensation. Hyperlipidemia is a laboratory finding and is not considered an actual disabling condition for VA purposes. VA has determined, in its rulemaking capacity, that hyperlipidemia and elevated cholesterol are simply laboratory findings and do not, in and of themselves, constitute a disability for which VA benefits may be awarded. See 61 Fed. Reg. 20440, 20445 (1996). There is no competent evidence of current disability as to these conditions. Due to the absence of proof of a present disability, there is no valid claim for service connection. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, we lack competent evidence of disease, injury and disability. In the absence of proof of a present disability, to include symptoms that cause functional impairment of earning capacity, there can be no valid claim. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997), Wait v. Wilkie, ___ Vet. App. __ (2020). To the extent that he asserts he has disability, his assertions are considered not credible in light of the lack of indication of any such condition in the post-service treatment record. The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. We emphasize that under the provisions of 1110, there must be disability and such disability must be due to disease or injury. Although Saunders addressed whether pain could be a disability, Saunders did not eliminate the requirement that there be underlying acquired pathology (disease or injury). Again, the most probative evidence establishes that he does not have any of these conditions. There is no treatment nor are there complaints, his current treating source does not identify these as being present. In the absence of proof of a current disability for which service connection may be granted, there is no valid claim; therefore, the claims are denied. 5. Entitlement to service connection for sleep apnea, claimed as a breathing disorder is denied. The private medical evidence first shows a diagnosis of sleep apnea in May 2005. Thus, there is no record of this in service or for decades following service. There is no medical evidence tending to show that sleep apnea is related to service. Again, STRs from the period of active service in the 1960's do not show sleep apnea, the National Guard examination in February 1982 does not suggest sleep apnea, and the Veteran has not indicated it was present in service. We find that sleep apnea was not present in service or for decades following service and is not otherwise related to service. The treatment record showing the condition since not prior to 2005 is highly persuasive evidence against finding a nexus to service. The Veteran has offered no competent evidence of a nexus. The preponderance of the evidence is against finding that a nexus exists between current sleep apnea and service. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Current symptoms have not been attributed by any competent evidence to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran's contentions pale in comparison to the medically uncontroverted treatment record showing no sleep apnea prior to 2005 and no relationship to service. His vague assertion that there is a relationship is not persuasive because he is not competent to opine as to etiology in this instance and there are no Jandreau type exceptions. The preponderance of the evidence weighs against the claim, and it is denied. 6. Entitlement to service connection for diabetes mellitus, to include based upon herbicide exposure in Vietnam is denied. 7. Entitlement to service connection for congestive heart failure, to include based upon herbicide exposure in Vietnam is denied. There is current diabetes mellitus as reflected in a June 2005 non-VA treatment record, but the record indicates it was diagnosed in the 1990s. There is current congestive heart failure and atrial fibrillation as reflected in non-VA treatment records dating from June 2005. The question for the Board is thus whether the current conditions are related to service. Again, we note there is no Vietnam service and no suggestion that there was exposure to herbicide other than the Veteran's rejected contention. (We repeat, the assertion of service in Vietnam is not credible.) Service connection based on presumptions for herbicide agent-associated diseases, such as diabetes and to the extent that there is any ischemic heart disease, is not warranted. Moreover, there is no suggestion diabetes was present prior to the 1990s or that congestive heart failure was present prior to 2005. STRs to include the 1966 separation physical examination do not show any complaints of, treatment for, or diagnosis of either condition in service in service. The physical shows normal endocrine system and heart. The first indication of diabetes mellitus is in 2005, with reference to the 1990's decades after service, with congestive heart failure dating from 2005. The February 1982 National Guard examination is also negative. As such, the preponderance of the evidence is against finding that either diabetes or an enumerated heart chronic condition was present in service or within the first post service year, or that there was continuity since service. Here, neither diabetes nor heart disease were noted, diagnosed or manifest during service or within one year of separation. He did not have characteristic manifestations sufficient to establish or suggest the disease processes during such time frame. Furthermore, there is no competent evidence of a nexus between remote post-service diabetes mellitus or congestive heart failure and service. While there is current non-VA treatment documenting the conditions many years after service, again, there is nothing credible to suggest that the current conditions are related to service. The preponderance of the evidence is against finding that a nexus exists between any current diabetes and service. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Current symptoms have not been attributed by any competent evidence to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran's contentions pale in comparison to the negative medical record for years following service; his vague lay assertions as to nexus are not competent and are not supported by any later medical opinion. His assertion is exclusively that he had Vietnam service and presumptive service connection is warranted on this basis, which has been rejected herein. There are no Jandreau type exceptions. The preponderance of the evidence weighs against the claims, and they are denied. 8. Entitlement to service connection for cellulitis, to include based upon herbicide exposure in Vietnam is denied. 9. Entitlement to service connection for residuals, tracheostomy, to include based upon herbicide exposure in Vietnam is denied. There is current cellulitis as reflected in non-VA treatment records dating from September 2011. Those records also show a reported history of tracheotomy from that date. The question for the Board is thus whether either current condition is related to service. The service treatment records do not reveal any complaint of, treatment for, or a diagnosis of cellulitis or tracheostomy. The lower extremities and throat were normal at separation examination in 1966. The private medical evidence first shows a diagnosis of this disease and the report of tracheostomy by history in September 2011. The February 1982 National Guard examination is negative for any mention of cellulitis or tracheostomy, again the extremities and throat were normal. There is no competent evidence of a nexus between current cellulitis or any residuals of tracheostomy and service. While there is current non-VA treatment, there is nothing to suggest these were present in service or for years thereafter, or that the current conditions are related to service. The preponderance of the evidence is against finding that a nexus exists between any current diabetes and service. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Current symptoms have not been attributed by any competent evidence to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran's vague lay assertions as to nexus are not competent and are not supported by Jandreau type evidence. His claim is solely based on the contention that he had Vietnam service and cellulitis and the tracheostomy are due to that service, the premise of which has been rejected herein. The preponderance of the evidence weighs against the claims; they are denied. 10. Entitlement to service connection for chronic kidney disease, to include based upon herbicide exposure in Vietnam or as secondary to diabetes, is denied There is current chronic kidney disease as reflected in non-VA treatment records dating from June 2005. However, as to the claim that it is secondary to diabetes mellitus, we note that service connection for that condition is denied herein. Thus, service connection for kidney disease secondary to diabetes is precluded. The question instead for the Board is thus whether the current chronic kidney disease is related to service. Again, we note there is no Vietnam service and no suggestion that there was exposure to herbicide other than the Veteran's rejected contention. Service connection based on in-service herbicide exposure is denied as the Veteran was not exposed. Moreover, there is no suggestion chronic kidney disease was present prior to sometime after 2000. STRs to include the 1966 separation physical examination do not show any complaints of, treatment for, or diagnosis of kidney condition in service. The physical shows normal genitourinary system. The first indication of the kidney problem is in 2005. The February 1982 National Guard examination is also negative for that system. As such, the preponderance of the evidence is against finding that an enumerated chronic kidney condition was present in service or within the first post service year, or that there was continuous treatment since service. Presumptive service connection based upon chronic disease is not warranted. Furthermore, there is no competent evidence of a nexus between current kidney disease and service. While there is current non-VA treatment documenting the condition years after service, again, there is nothing to suggest that the current condition is in any way etiologically related to service. The preponderance of the evidence is against finding that a nexus exists between any current chronic kidney disease and service. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Current symptoms have not been attributed by any competent evidence to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran's vague lay assertions as to nexus are not competent and are not supported by competent evidence and there are no Jandreau exceptions. His assertion is that he had Vietnam service and the kidney condition is due to Agent Orange exposure therein, which has been rejected herein; or that the condition is due to diabetes, which is not service connected. In sum, the Veteran did not serve in Vietnam, he was not exposed to herbicide agents during service, the claimed disorders were not manifest in service or within one year of separation and there is no relationship to a service-connected disease or injury. The preponderance of the evidence weighs against the claim, and it is denied. . H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. RIPPEL, 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.