Citation Nr: 21041138 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-15 341A DATE: July 8, 2021 ORDER Service connection for headaches, to include as due to herbicide exposure is denied. Service connection for a dizziness, to include as due to herbicide exposure, is denied. Service connection for esophageal cancer, to include as due to herbicide exposure, is denied. Service connection for a disability manifested by syncope, to include as due to herbicide exposure, is denied. FINDING OF FACT The Veteran does not have a disability manifested by dizziness, headaches, and/or syncope and esophageal cancer that are related to his military service, or were manifested to a compensable degree within a year of service discharge (i.e., malignant tumor or organic diseases of the nervous system). CONCLUSIONS OF LAW 1. The criteria for service connection for dizziness have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116(f), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116(f), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for service connection for a disability manifested by syncope have not been met. 38 U.S.C. §§ 1110, 1116(f), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for service connection for esophageal cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116(f), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1968 to March 1970, including service in the Republic of Vietnam (RVN). Of note, the Veteran requested a Board hearing, but failed to report to the scheduled hearing, and has not presented good cause for his absence. Accordingly, his hearing request is considered to have been withdrawn, and the Board will decide the claim based on the evidence of record. The Veteran seeks service connection for headaches, dizziness, a disability manifested by syncope, and, esophageal cancer. The Veteran asserts that service connection is warranted for the claimed disabilities as due to his military service, to include exposure to Agent Orange. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, such as organic diseases of the nervous system and malignant tumors, 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). For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, 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); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. The applicable criteria provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). Notably, VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996). If a veteran was exposed to an herbicide agent during active service, certain diseases shall be service connected if they manifest to a degree of 10 percent disabling or more at any time after service. 38 C.F.R. § 3.307 (a)(6). This presumption of service connection will attach, even in the absence of any evidence of the disease while in service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Here, although the Veteran served in the RVN and is, thus, his exposure to herbicides is presumed, none of the Veteran's claimed conditions are among the list of diseases that are subject to presumptive service connection. Thus, these provisions are not for application, and service connection on a presumptive basis as due to herbicide exposure is not warranted for any of the disabilities on appeal. 38 C.F.R. § 3.309(e). Where the evidence does not warrant presumptive service connection, such as in this case, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As an initial matter, the Board will address the Veteran's claims for service connection on a direct basis. The Veteran has current diagnoses of dizziness, syncope and collapse and esophageal cancer, and complaints of headaches. Thus, the first Shedden element is satisfied with respect to each disability. However, there are no findings of an organic disease of the nervous system (i.e., headaches and dizziness) and/or malignant tumor during the Veteran's service. The Board notes that the Veteran's service treatment records (STRs) include a June 1968 service separation examination report reflecting that all of the Veteran's systems were evaluated as "normal." On an accompanying Report of Medical History, the Veteran denied having had dizziness or fainting spells or frequent or severe headaches. No medical professional has attributed the development of these disabilities to the Veteran's service, to include his presumed herbicide exposure in the RVN. As such, there is no evidence of an in-service event or injury sufficient to meet the second Shedden element and service connection on a direct basis cannot be established for any of the disabilities on appeal. Presumptive service connection provides another avenue for the Veteran to seek compensation for his headaches, dizziness, and esophageal cancer. However, there is no evidence that any of these disabilities manifested to a compensable degree within a year of the Veteran's service. As noted above, the Veteran's STRs do not disclose any treatment for headaches, dizziness or esophageal problems or symptoms, the Veteran denied having had headaches and dizziness at discharge in June 1968, and there is no evidence of treatment for any of the disabilities in the first post-service year. As such, there is no evidence of continuity since the Veteran's service for headaches, dizziness, and/or esophageal cancer. The Veteran has pointed to no evidence of manifestations of these disabilities since service sufficient to establish continuity and the Board notes the absence of continuous treatment for these disabilities after the Veteran left service. As such, presumptive service connection based on the provisions for chronic diseases is not warranted for these disabilities. 38 C.F.R. § 3.309. The issues on appeal are based on the contentions that headaches, dizziness, a disability manifested by syncope, and esophageal cancer were caused by service, to include as due to exposure to Agent Orange. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case based on claims of secondary service connection and exposure to Agent Orange, this is considered to fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that the Veteran was not afforded VA examinations in connection with his current claims. The United States Court of Appeals for Veterans Claims (Court) has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Likewise, there is no suggestion from any competent source to suggest that his headaches, dizziness, disability manifested by syncope, and/or esophageal cancer even might have begun during or been otherwise caused by his military service. Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide these claims. Bardwell v. Shinseki, 24 Vet. App. 36 (2010); see also VAOPGCPREC 5-2004 In light of the aforementioned, the preponderance of the evidence is against a finding of service connection for headaches, dizziness, a disability manifested by syncope, and esophageal cancer on a direct basis, on the presumptions in favor of chronic diseases, or on the basis of continuity of symptomatology. Accordingly, service connection for these disabilities, to include as due to herbicide agent exposure, is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.