Citation Nr: 21032847 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 17-10 582 DATE: May 28, 2021 ORDER Entitlement to service connection for Parkinson's disease, including as due to in-service exposure to an herbicide agent, is denied. Entitlement to service connection for a heart disability, to include bypass surgery, congestive heart failure, and acute myocardial infarction, including as due to in-service exposure to an herbicide agent, is denied. Entitlement to service connection for lymphoma with chemotherapy, including as due to in-service exposure to an herbicide agent, is denied. Entitlement to service connection for aneurysm of the right-side heart is denied. Entitlement to service connection for a detached retina of the right eye is denied. REMANDED Entitlement to service connection for aneurysm of the lower aortic is remanded. FINDINGS OF FACT 1. The record evidence shows that, prior to his death, the Veteran had not established qualifying active service for any injuries or diseases incurred while he served in the U.S. Army Reserves. 2. The record evidence is against finding that Parkinson's disease, heart disability, and lymphoma with chemotherapy are related to service, including as due to in-service exposure to an herbicide agent. 3. The record evidence does not show a current diagnosis of an aneurysm of the right-side heart which could be related to service. 4. The record evidence shows a detached retina of the right eye is not related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for Parkinson's disease, including as due to in-service exposure to an herbicide agent, are not met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for a heart disability, to include bypass surgery, congestive heart failure, and acute infarction, including as due to in-service exposure to an herbicide agent, are not met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). 3. The criteria for entitlement to service connection for lymphoma with chemotherapy, to include as due to in-service exposure to an herbicide agent, are not met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). 4. The criteria for entitlement to service connection for aneurysm of the right-side heart are not met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). 5. The criteria for entitlement to service connection for a detached retina of the right eye are not met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty in the U.S. Army from September 1961 to September 1963. He had additional service in the U. S. Army Reserves. He died in July 2018. His widow, the Appellant, has been recognized as an appropriate substitute claimant to continue this appeal. This matter comes before the Board of Veterans' Appeal (Board) from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Board remanded the issues on appeal for further development. There has been substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Service Connection The Veteran, prior to his death, and the Appellant, after the Veteran's death, assert that service connection for Parkinson's disease, a heart disability, and lymphoma is warranted because he was exposed to herbicides while serving in the Army reserves at Fort Drum. Initially, the Board notes that the preliminary determination in any claim for Veterans' benefits is whether the claimant is considered a "Veteran" as defined under VA law. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Special rules apply to Reserve service. Service in the Reserves, even during a period of ACDUTRA (or INACDUTRA), without more, will not suffice to confer "Veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). The term "Veteran" is defined as a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable. 38 U.S.C. § 101(2). Active Duty for Training (ACDUTRA) is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Thus, to establish "Veteran" status with respect to service in the Reserves, and eligibility for service connection, the record must show that a claimant was disabled due to a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA or that he or she was disabled from an injury incurred or aggravated in the line of duty during a period of INACDUTRA. See Mercado-Martinez, 11 Vet. App. at 419; Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); see also 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). The Board notes initially that it is undisputed that the Veteran established Veteran status prior to his death for his period of active U.S. Army service between September 1961 and September 1963. The issue is whether the record evidence establishes Veteran status for subsequent service after September 1963 in the Army Reserves. Here, the evidence does not suggest and neither the Veteran, prior to his death, nor the Appellant, after his death, assert that Veteran status is established for any period of service after his honorable discharge from active U.S. Army service in September 1963. It shows instead that the Veteran served short periods of INACDUTRA and ACDUTRA of 15 days at a time between June 1965 and June 1966. Thus, he has not established "Veteran" status for his U.S. Army Reserve service between June 1965 and June 1966 when his alleged in-service exposure to an herbicide agent occurred. 1. Entitlement to service connection for Parkinson's disease, a heart disability, and for lymphoma with chemotherapy, each including as due to in-service exposure to an herbicide agent, is denied. The Board finds that the preponderance of the evidence is against granting the Veteran's claims of service connection for Parkinson's disease, a heart disability, and for lymphoma with chemotherapy, each including as due to in-service exposure to an herbicide agent. As noted above, in January 2016 correspondence and subsequent arguments presented to the Board, the Veteran, prior to his death, and the Appellant, after the Veteran's death, assert that service connection for Parkinson's disease, a heart disability, and lymphoma is warranted because he was exposed to herbicides while serving in the Army Reserves at Fort Drum following his honorable discharge from active U.S. Army service in September 1963. The record indicates that the Veteran was diagnosed with Parkinson's disease between 2009 and 2010. He suffered from coronary artery disease with bypass in 1993 and stent in 2009 and diagnosed with congestive heart failure in 2013. He also was diagnosed with Non-Hodgkin's lymphoma in 2006. Thus, the first criteria for service connection for each of these claimed disabilities is met. The Board notes that service connection for Parkinson's disease, a heart disability, and lymphoma is available on a presumptive basis due to in-service exposure to an herbicide agent. 38 C.F.R. §§ 3.307(a)(6); 3.309(e). The presumption is limited to those types of service designated by statute and regulation, including Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, in or near the Korean DMZ in an area in which herbicides are known to have been applied during the period from September 1, 1967 to August 31, 1971, and under circumstances in which the Veteran regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. See 38 U.S.C. §§ 1116, 1116B; 38 C.F.R. § 3.307(a)(6). Here, the record does not show and the Appellant does not contend that her husband served in Vietnam, in or near the Korean DMZ, or regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Id. Therefore, in-service exposure to an herbicide agent cannot be presumed. Although in-service exposure to an herbicide agent cannot be presumed, the Appellant (as the Veteran's surviving spouse and substitute claimant in this appeal) can establish service connection for certain disabilities by showing direct evidence of such exposure. The United States Court of Appeals for the Federal Circuit has held that, if a Veteran is not entitled to a presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). As noted elsewhere, the Veteran, prior to his death, and the Appellant, after the Veteran's death, contend that he was exposed to Agent Purple and Agent Orange testing during his active duty service in the Army Reserves at Fort Drum. Military personnel records indicate that the Veteran had 15 days of inactive duty for training (INACDUTRA) (reported as ANACDUTRA) in June 1965 and May 1966 at Fort Drum. Thus, the Veteran cannot be considered a "Veteran" for this period of INACDUTRA for purposes of determining entitlement to service connection. See 38 U.S.C. § 101(2). Regarding his alleged in-service exposure to an herbicide agent, the Veteran stated in January 2016 correspondence that he was exposed to herbicide agents during training exercises at Fort Drum because the drills and maneuvers required extensive time in exposed forested areas. He described his exposure as spending much time lying on the ground in a prone position. He explained that marching drills took him around the perimeter of the base as well as into the depths of the surrounding forested areas. He did not report any actual knowledge of spraying or other usage of herbicide agents during his time at Fort Drum. In November 2016, VA issued a formal finding which concluded that it lacked necessary information for the U. S. Army and Joint Services Records Research Center (JSRRC) (now known as the U.S. Army Records Management and Declassification Agency (RMDA)) to verify the allegation of in-service exposure to an herbicide agent at Fort Drum. In this memorandum, VA delineated efforts made to verify the Veteran's allegations to include requesting information from him on how his military duties exposed him to herbicides. VA noted that the Veteran did not respond to its request for information. VA referenced a November 2016 email correspondence which stated that the Department of Defense (DoD) identified a test of a pre-Agent Orange (AO) herbicide at Fort (Camp) Drum, New York, during 1959 which involved application of 13 drums by helicopter over a remote forested area that was not near, or accessible to, base personnel. This email correspondence also stated that Veterans claiming AO exposure at Fort Drum needed to provide evidence that they were involved with, or at the location of, the 1959 testing. The correspondence from DoD concluded that there was no other evidence of AO use, testing, storage, or transportation at Fort Drum; the Appellant's claimed exposure was six years after the testing; and "most importantly, Reservists do not qualify for service connecting AO-related diseases that develop many years after the Reservist active/inactive duty for training." Given the foregoing, and especially in light of the DoD/VA determination in November 2016, the Board concludes that the Veteran was not exposed to an herbicide agent while on INACDUTRA in June 1965 and May 1966 at Fort Drum. The Veteran also submitted an internet article regarding the use of herbicide agents. This article described the aerial application of herbicides over 2,560 acres of Fort Drum forested area in the summer of 1959. This event occurred approximately 6 years before the Veteran was at Fort Drum for INACDUTRA and, as noted in the article, the area selected for treatment was isolated from combat maneuvers. Thus, this article does not support finding that the Veteran was exposed to an herbicide agent while on INACDUTRA at Fort Drum. Nevertheless, even assuming arguendo that herbicide agents were used at Fort Drum during a time period when the Veteran was present, the evidence does not establish that, in fact, he was exposed to an herbicide agent in the performance of his duties during his periods of INACDUTRA in June 1965 and May 1966. He did not report that he witnessed the spraying of herbicide agents while at Fort Drum. Instead, he asserted exposure to herbicide agents because he spent significant amounts of time directly on the ground, in vegetation, and in dirt. In other words, he contends that his exposure to herbicide agents came from close interactions with residual chemicals in the ground at Fort Drum. The Board notes here that the Veteran as a lay person is competent to describe his duties and that he spent time in exposed forested areas. He is not competent to identify a chemical compound or to offer an opinion as to how far a chemical compound could travel or how long a chemical would last after exposure to the elements, however. He also is not competent to provide a medical opinion linking any of his claimed disabilities to active service or any incident of service, including as due to his alleged in-service exposure to an herbicide agent. Such conclusions require medical and/or scientific expertise which the Veteran lacks as a lay person. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Because in-service exposure to an herbicide agent to is not shown by the record, there is no in-service event, injury or disease that is related to the Veteran's claimed disabilities. In other words, the second element of a service connection claim is not met. In a February 2014 letter, the Veteran's private physician, Dr. C. S. reported that the Veteran had a history of exposure to Agent Orange/Agent Purple while in service for several years and those ingredients were known to be toxic to the nervous system. Dr. C. S. stated that this exposure also was implicated as a possible cause for Parkinson's disease. Current regulations provide that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); and Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Accordingly, even if the February 2014 letter from Dr. C. S. is viewed in the light most favorable to the Veteran, this evidence does not establish service connection for any of the claimed disabilities. The Board acknowledges that the Veteran was not afforded a VA examination to aid in substantiating these claims; however, given the lack of an in-service incurrence or probative evidence indicating that there may be a nexus between any of the current disabilities and active service, the Board finds that this was not prejudicial to the Veteran. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for Parkinson's disease, a heart disability, or for lymphoma. See Combee, 34 F.3d at 1043-44. A chronic condition was not shown during the Veteran's active duty service, and the diagnosed illnesses were made decades after discharge from active duty. There also is no probative medical evidence of record linking any of these current disabilities to service. In summary, the Board finds that service connection for Parkinson's disease, a heart disability, and for lymphoma with chemotherapy, each including as due to in-service exposure to an herbicide agent, is not warranted. 2. Entitlement to service connection for aneurysm of the right-side heart is denied. The Board finds that service connection for aneurysm of the right-side heart, including as due to a service-connected disability, is not warranted. With respect to service connection for aneurysm of the right-side heart on a direct basis, the Board notes that the first element for a valid service connection claim is that there must be a current disability. Prior to his death, the Veteran did not have a current diagnosed disability of aneurysm of the right-side heart. The competent and credible evidence of record does not contain a diagnosis for this disorder. To the extent the Veteran, during his lifetime, and the Appellant, after his death, contends that he had an aneurysm of the right-side heart which is related to service, the evidence does not show that they possess any specialized training to provide a competent medical opinion. See Jandreau, 492 F.3d at 1376-77. Where competent evidence does not establish the existence of a claimed disability, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Thus, service connection for aneurysm of the right-side heart is not warranted on a direct basis. See 38 C.F.R. §§ 3.303, 3.304. The Board also finds that service connection for aneurysm of the right-side heart as due to a service-connected disability is not warranted. See 38 C.F.R. § 3.310. In May 2018 and April 2021 Briefs, the Veteran, prior to his death, and the Appellant, after his death, assert that his aneurysm of the right-side heart is due to his claimed heart disability. The Board notes that it denied service connection for a heart disability in this decision (as discussed above). The Board next notes that a valid secondary service connection claim requires that a claimed disability must be related etiologically to a service-connected disability. If service connection is not in effect for the primary disability, then secondary service connection is not warranted as a matter a law. Here, the evidence does not show that the Veteran experienced a heart disability during his lifetime which is related to active service. It also does not show that any claimed heart disability caused or aggravated (permanently worsened) his claimed aneurysm of the right-side heart. Neither the Veteran nor the Appellant has identified or submitted evidence demonstrating entitlement to service connection for aneurysm of the right-side heart, including as due to a heart disability. In summary, the Board finds that service connection for aneurysm of the right-side heart, including as due to a heart disability, is not warranted. 3. Entitlement to service connection for a detached retina of the right eye is denied. The Board finds that the preponderance of the evidence is against granting the claim of service connection for a detached retina of the right eye. Prior to his death, the Veteran asserted in a May 2018 Brief that a detached retina of the right eye is related to active service. He specifically asserted that he entered service with normal vision in the right eye but had nearsighted vision at separation. He also asserted that he was treated for a detached retina of the right eye which resulted in a droopy eyelid from surgery. He finally asserted that his detached retina of the right eye was caused or aggravated by in-service exposure to toxic chemicals, including chloroquine and herbicides. The record evidence does not support these assertions. Turning to the evidence of record, a November 1960 pre-induction Report of Medical History (RMH), completed by the Veteran in conjunction with the Report of Medical Examination (RME) marked 'yes' for eye trouble with the notation "visual defect wears glasses." The accompanying RME marked 'abnormal' for eyes and noted, "myopia astigmatism corrected with lenses." The September 1961 induction RMH also marked 'yes' for eye trouble, while the RME reported "visual defect wears glasses." Additionally, the RME reported the distant vision for the uncorrected right eye as 20/20 and corrected 20/20, while near vision was J-1. Aside from these notations, service treatment records are silent for complaints of or treatment for an eye condition. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). At separation, the July 1963 RMH reported normal eyes. The RME also reported normal eyes, noting the distant vision for the uncorrected right eye as 20/90 and corrected 20/20, while right eye near vision was again reported as J-1. There was also a notation of compound myopic astigmatism in both eyes. Post-service treatment records indicate that the Veteran had eye surgery for bilateral cataracts, chronic asymmetry, and a detached retina of the right-eye, which was treated surgically in December 1996, over 30 years after discharge from military service. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran asserts that upon entering service, his right-eye vision was normal and that upon separating, he was nearsighted. The RME reveals the opposite. His vision was noted as abnormal due to myopia astigmatism which was corrected with glasses which he wore. At separation, the Veteran's vision was noted as normal in both his self-completed RMH and the examiner completed RME with the examiner noting compound myopic astigmatism in both eyes. More importantly, the Veteran's nearsighted vision, reported as J-1, was unchanged from induction examination to separation. Thus, to the extent the Veteran referenced a web article from the Mayo clinic discussing how nearsightedness can cause a detached retina, the Board finds it unpersuasive as a J-1 finding for nearsighted is the equivalent of a 20/20 visual acuity on a distance eye chart. Additionally, as to the reduced visual acuity, for purposes of entitlement to VA benefits, the law provides that refractive errors of the eyes are congenital or developmental defects and not a disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection is prohibited for refractive error of the eyes even if visual acuity decreased in service as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Id. The Veteran asserts that he received treatment for a detached retina of the right eye and had residual droopy eyelid from surgery. A May 2012 VA treatment records confirm this diagnosis and that the right eyelid "drooped since retina surgery." There is no medical evidence finding that the surgery or residuals was due to the Veteran's active service. He never associated the eye disorder with an in-service injury or event until he filed for service connection. No treatment records indicate that he reported that his eye disorder was related to service. Consequently, there is no basis for a grant of service connection for a detached retina of the right eye on a direct basis. The Veteran also is not entitled to service connection for a detached retina in the right eye as due to in-service exposure to toxic chemicals. As noted, prior to his death, he asserted that toxic exposure (to either chloroquine or herbicides) either caused or aggravated the detached retina in the right eye. The Board notes initially that a detached retina is not a chronic disease under the regulations governing presumptive service connection based on in-service exposure to an herbicide agent. See 38 C.F.R. § 3.309. Additionally, the most probative evidence of record does not show that the Veteran had a continued problem with a detached retina in the right eye in service or sustained a disease or injury while on active duty or within the first post-service year which caused a chronic eye disability manifested by a detached retina in the right eye. Service records do not indicate that the Veteran was exposed to toxic chemicals during service. The Board acknowledges that, during his lifetime, the Veteran sought service connection for several disabilities as due to in-service exposure to an herbicide agent. All of those claims were denied because there was no evidence of such exposure. To the extent the Veteran referred to a CDC article discussing chloroquine and a detached retina as support for granting service connection, the Board finds it unpersuasive. The Board notes in this regard that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999).; see also Sacks v. West, 11 Vet. App. 314 (1998). The medical article submitted by the Veteran in this case was not accompanied by the opinion of any medical expert linking his disability to active service or to his alleged in-service exposures to toxic chemicals. Thus, the medical article submitted by the Veteran is insufficient to establish the medical nexus opinion required for causation. See Sacks, 11 Vet. App. at 317 (citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Although the Veteran is competent to report on objective manifestations such as pain or lost vision because these would come via personal senses, he is not competent to provide a medical nexus opinion linking any manifestations of symptoms for an illness which began 30 years after discharge from service. The issue is medically complex as it requires knowledge and interpretation of complicated diagnostic medical testing. See Jandreau, 492 F.3d at 1377; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Neither the Veteran nor the Appellant has identified or submitted evidence demonstrating entitlement to service connection for a detached retina of the right eye. In summary, the Board finds that service connection for a detached retina of the right eye is not warranted. REASONS FOR REMAND Entitlement to service connection for aneurysm of the lower aortic is remanded. The Veteran, prior to his death, and the Appellant, after the Veteran's death, assert that service connection for aneurysm of the lower aortic is warranted. The Board notes that it denied service connection for a heart disability (as discussed above). Thus, the Veteran is not entitled to service connection for aneurysm of the lower aortic as due to a service-connected heart disability. The Board's decision does not preclude consideration of entitlement to service connection for aneurysm of the lower aortic on a direct basis, however. See Combee, 34 F.3d at 1043-44. Private treatment records show the Veteran was diagnosed with lower aortic aneurysm in 2006 prior to his death. Thus, there is a current diagnosed disability. Although, there is no evidence of an in-service injury, event or disease, or evidence of a chronic condition upon discharge from service, the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. Thus, the Board finds additional development is needed before adjudicating the claim. As the Veteran had a current diagnosed disability, aneurysm of the lower aortic, which could be related to his active service, the Board also finds that, on remand, the AOJ should obtain a medical opinion addressing this matter. See also McLendon, 20 Vet. App. at 79. The matter is REMANDED for the following action: 1. Forward the claims file and a copy of this REMAND to an appropriate clinician for a medical nexus opinion concerning the nature and etiology of the Veteran's aneurysm of the lower aortic. Because the Veteran is deceased, he should not be asked to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that aneurysm of the lower aortic, if present, is related to active service. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for aneurysm of the lower aortic, alone, is insufficient rationale for a medical nexus opinion. 2. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, 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.