Citation Nr: 21032487 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-44 781 DATE: May 27, 2021 ORDER Entitlement to service connection for residuals of a stroke, to include as due to Agent Orange exposure, is denied. FINDING OF FACT The Veteran's stroke did not occur in service or for decades thereafter, and is not etiologically related to service, including Agent Orange exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a stroke, to include as due to exposure to Agent Orange, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1967 to June 1971 with verified service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran and his spouse testified in an August 2017 videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been added to the electronic record. The claim was remanded by the Board in May 2019 for further evidentiary development. Upon return of the claim, the Board observes that there has been substantial compliance with its remand directives and the claim is prepared for further adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted through the application of statutory presumptions for chronic conditions, which includes hypertension, sensorineural hearing loss and tinnitus. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also 38 U.S.C. §§ 1112, 1137 (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. § 3.307(a)(3). The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Additionally, a veteran who "during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116 (f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2019). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600 -42608 (2002). In this instance, cerebrovascular accident or stroke has not been included in the list of enumerated diseases. Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. 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) (2012). Entitlement to service connection for residuals of a stroke The Veteran contends that he has residuals of a stroke related to his active military service. After careful review of the evidence, the Board disagrees. The Veteran served in Vietnam during the Vietnam Conflict Era; therefore, his exposure to herbicide agents therein is presumed. 38 C.F.R. § 3.307 (a)(6)(iii). As noted above, a stroke is not one of the enumerated conditions that affords Veterans presumptive service connection based on Agent Orange exposure. See 38 C.F.R. § 3.309(e). Thus, the Board must consider service connection on a direct basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records do not show a diagnosis, treatment or complaints related to a stroke during active duty or at discharge. Further, the Veteran was not diagnosed with a stroke until decades after service. Private treatment records reflect a February through March 2003 inpatient admission to a South Carolina hospital in which the Veteran was diagnosed with a right-sided hemiparesis compatible with an acute cerebrovascular accident (stroke) which was clinically resolved on discharge. A daily smoking history was documented. During his August 2017 hearing, the Veteran testified that his private treating neurologist told him that he had sticky blood that formed clots and a clot broke loose and went to his brain. In 2006, his medications were changed as he was having symptoms of a stroke again. The neurologist told the Veteran that she was not comfortable stating that Agent Orange was absolutely the cause, only that her research showed that it could (emphasis added) be a cause. The Veteran described working on aircraft with white sheets of Agent Orange that he washed down. The Veteran's spouse described post stroke that the Veteran was slurring his speech and dragging his leg when he gets tired. His main residual symptoms were comprehension problems and difficulty communicating his thoughts. Accordingly, the first criteria of a current disability required for service connection is met. The second criteria, an inservice incurrence, is met by the presumption of Agent Orange exposure with the Veteran's verified service in the Republic of Vietnam in 1967. The Board's decision will turn on whether there is a connection between the presumed Agent Orange exposure in 1967 and the Veteran's stroke in 2003. In September 2017 two of the Veteran's private treating physicians offered medical opinions. The first stated that the Veteran's strokes were as likely as not related to the Veteran's contact with Agent Orange sprayed around the base in Vietnam while he was working on aircraft with Agent Orange residue. The second opinion was prepared by the Veteran's neurologist who indicated that the Veteran had a non-ischemic stroke that was at least as likely as not related to Agent Orange exposure. He opined that the patient's condition could be related to Agent Orange as the progression of his symptoms met the criteria of indications cited by the government concerning Agent Orange. He noted that Agent Orange experts could provide a more accurate determination. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The opinions offered were conclusory without rationale or supporting authoritative medical research. In addition, despite a checkmark indicting that the opinions were held to the standard of "more likely than not" the neurologist wrote that the stroke residuals "could be" related and deferred to others for a more accurate determination. Accordingly, the opinions of the treating physicians are of limited probative value. In August 2020 the Veteran submitted a Statement in Support of Claim noting that he was exposed to Agent Orange in Vietnam, he did not have issues while in service, he immediately sought testing and treatment when the issues developed, and Agent Orange effects do not show up until years later. The Veteran attached an April 2019 article from the Stars and Stripes regarding new legislation, the Keeping Our Promises Act, which proposed recognition of nine more diseases presumed to be caused by Agent Orange, including hypertension and stroke. The Board notes that the researchers with the National Academy of Medicine November 2018 findings were that there was "suggestive" evidence that eight of the diseases, including stroke, could be caused by Agent Orange, as opposed to sufficient or conclusive evidence. Accordingly, the Board finds that the information in the article conveys a question and not sufficient evidence of causation. In January 2020, a VA examiner performed a VA disability examination and provided a nexus opinion in support of his claim for service connection for stroke. The examiner noted that the Veteran was diagnosed with a stroke in 2003, after several months of right eyelid lag, right upper and lower extremity numbness and difficulty with concentration. He was admitted to the hospital for inpatient evaluation and treated with heparin once the diagnosis of cerebrovascular accident was confirmed. His symptoms resolved, except for numbness in his right lower extremity and his reported ongoing difficulties with concentration, memory, and executive functions. Upon physical examination, the Veteran demonstrated no residual symptoms including muscle weakness of his extremities or speech or gait disturbance. The examiner concluded that the Veteran's stroke was less likely than not related to his service. As rationale, she offered that the Veteran had no symptoms congruent with stroke, neither during his time in service, nor within one year of discharge from his military service. There is also no relationship between the Veteran's possible (note: conceded by VA) herbicide exposure during his military service and his stroke. There is no substantiation, in the current medical research, of a relationship between stroke and herbicide exposure. The Veteran also has no other diagnoses related to herbicide exposure that would even predispose him to the development of stroke. The Veteran's chronic morbid obesity was likely a risk factor in his development of his stroke condition. The Board finds the examiner's opinion to be competent and credible medical evidence. The Board acknowledges the Veteran's belief that his residuals from his stroke are due to Agent Orange exposure in service. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his current residuals of a stroke and his active service. Such an opinion would require medical expertise that the Veteran has not shown that he possesses. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing and medical records. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his strokes and residuals. 38 C.F.R. § 3.159 (a)(1), (2). For the reasons and basis stated above, the Board finds that service connection for residuals of strokes on a direct or presumptive basis is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is the against the claim, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.