Citation Nr: A22025428 Decision Date: 12/14/22 Archive Date: 12/14/22 DOCKET NO. 211018-192322 DATE: December 14, 2022 ORDER 1. Entitlement to service connection for chloracne, to include as due to exposure to herbicide agents, is denied. 2. Entitlement to service connection for jungle rot of the feet (jungle rot), to include as due to exposure to herbicide agents, is denied. 3. Entitlement to service connection for renal stenosis, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran is not shown to have served in Vietnam, or to otherwise have been exposed to herbicide agents/Agent Orange in service; chloracne was not manifested during service or within one year following the Veteran's separation from service; it is not shown that he has had chloracne at any time since his separation from active service. 2. The Veteran's jungle rot was not manifested during service, and it is not shown that he has had jungle rot at any time since his separation from active service. 3. The Veteran's renal stenosis was not manifested in service or for many years, thereafter, and is not shown to be etiologically related to the Veteran's service. CONCLUSIONS OF LAW 1. Service connection for chloracne is not warranted. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6), 3.309. 2. Service connection for jungle rot is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. Service connection for renal stenosis is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2021 rating decision by the Department of Veterans Affairs (VA). In an October 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In September 2022, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript is in the record. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The Veteran's primary theory of entitlement regarding the claim seeking service connection for chloracne is one of presumptive service connection under 38 U.S.C. § 1116 (based on exposure to herbicide agents). Also, although jungle rot and renal stenosis are not presumptive conditions under 38 U.S.C. § 1116, he asserts that such disorders are also related to exposure to herbicide agents. He contends, in part, that he was exposed to Agent Orange during service aboard the U.S.S. Ranger. Certain chronic diseases (to include certain kidney disorders, such as nephritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time post service (one year for the kidney disorders). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). A Veteran who, during active service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116 (f). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases (to include type 2 diabetes mellitus and early onset peripheral neuropathy) shall be presumed to be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, 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). The disease shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). "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, that is, within the land borders, including the inland waters, of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). In June 2019, following the U.S. Court of Appeals for the Federal Circuit's holding in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act). The BWN Act adds section 1116A to title 38 of the United States Code, effective January 1, 2020. The new section 1116A extends the existing Agent Orange Act of 1991 presumption codified at section 1116 to Veterans who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See VAOPGCPREC 3-2019 at 2, 12; BWN Act, Pub. L. No. 116-23, Sec. 2 (a). The BWN Act defines "offshore" as a geographical area "not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting eleven points of latitude and longitude listed in an included table." Id. Accordingly, to show service in the Republic of Vietnam and establish entitlement to presumptive service connection due to alleged herbicide exposure, the evidence must show that the Veteran served within the land borders (including the inland waters) or served on a ship within 12 nautical miles seaward of the line defined by the BWN Act. Recent amendments to 38 U.S.C. §1116 provide that exposure to herbicide agents will be conceded for Veterans who performed covered service. See Honoring our PACT Act of 2022, Pub. L. 117-168; 38U.S.C. §1116. In this context, the term "herbicide agent" is defined as 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. 38 C.F.R. § 3.307(a)(6)(i). The term covered service from the recent amendments to 38 U.S.C. § 1116 includes service performed in Thailand at any United States or Royal Thai base during the period beginning on January 9, 1962; service in Guam or American Samoa or in the territorial waters off of Guam or American Samoa from January 9, 1962, through July 31, 1980; service in Laos from December 1, 1965, through September 30, 1969; service on Johnston Atoll or on a ship that called at Johnston Atoll from January 1, 1972, through September 30, 1977; and service in Cambodia at Mimot or Krek, Kampong Cham Province from April 16, 1969, through April 30, 1969. See Honoring our PACT Act of 2022, Pub. L. 117-168; 38 U.S.C. § 1116. If an exception does not apply, evidence of exposure may be determined on a facts-found basis. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). However, once exposure to herbicides is established, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal," and does not require that the evidence be in exact equipoise. Under 38 U.S.C. § 5107, the benefit of the doubt rule is clear and unambiguous on its face. Evidence is in approximate balance when the evidence in favor of and opposing the Veteran's claim is found to be almost exactly or nearly equal. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 21 F.4th 776 (Fed. Cir. 2021). A March 2021 Records Research Response for the USS Ranger (CVA 61) notes that VA was unable to concede herbicide exposure for the Veteran based on the ship locator tool and other VBA approved tools. It was noted that the Veteran was assigned to the USS Ranger from May 19, 1966, to September 23, 1966, and that a professional researcher from the VBA completed comprehensive research on his claimed exposure while serving on the USS Ranger from May 19, 1966, to September 23, 1966. The 1966 command history report was reviewed in an attempt to substantiate the Veteran's claimed exposure, and no evidence was located to support documentation of the claimed exposure. A March 2021 VA Memorandum notes that exposure to herbicides could not be conceded as the evidence of record did not show the Veteran had duty or visitation in the Republic of Vietnam or on its inland waterways or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. 1., 2. Entitlement to service connection for chloracne and jungle rot is denied. The Veteran's service treatment records (STRs) are silent for complaints, treatment, or diagnoses pertaining to a skin disability (to include chloracne and jungle rot). A March 2018 VA treatment record notes that the Veteran developed some mild itchy erythematous areas of flexural eczema on his bilateral elbows. A September 2020 VA treatment record notes that the Veteran requested that a mole on his back be examined. On examination, benign pigmented nevus of the middle of the back was shown. A March 2021 VA treatment record notes a diagnosis of seborrheic dermatitis of the scalp. An April 2021 VA treatment record notes that the Veteran is allergic to contrast dye and that such allergy causes his hands and feet to itch. At the September 2022 Board hearing, the Veteran asserted that he developed jungle rot while on the USS Ranger when it was in the Gulf of Tonkin. He reported that he sought treatment for jungle rot and chloracne during service and was provided carbolic acid. The Veteran related that after treatment the chloracne reduced, and the jungle rot cleared. He reported that he currently had chloracne and used Tinactin to control it. The Veteran's STRs do not show that chloracne (or any acneform disorder consistent with chloracne) or jungle rot was manifested in service (they do not document any skin complaints). Furthermore, there is no evidence that chloracne (or an acneform disorder consistent with chloracne) or jungle rot was manifested within a year following his separation from service. At the September 2022 hearing the Veteran testified that he sought treatment for chloracne and jungle rot during service and currently had chloracne. However, VA treatment records do not show a current diagnosis of chloracne or jungle rot, the Veteran did not identify any provider who had diagnosed chloracne or jungle rot prior to the rating decision on appeal, and he did not submit treatment records that showed diagnoses of chloracne or jungle rot within 90 days of the Board hearing. Consequently, service connection for chloracne on the basis that it became manifest in service, or on a presumptive basis under 38 U.S.C. § 1116, is not warranted, and service connection for jungle rot on the basis that it became manifest in service is not warranted. Under Combee (supra), the Veteran may still establish direct service connection for chloracne and jungle rot by affirmative evidence showing that he has such disabilities and that they are related to his service, including as due to herbicide (Agent Orange) exposure therein. The threshold matter that must be addressed under a Combee analysis (as in any claim seeking service connection) is whether or not there is competent evidence that the Veteran actually has the disabilities for which service connection is sought, chloracne and jungle rot. In the absence of proof of such disabilities, there are no valid claims for service connection under any theory of entitlement. See, e.g., Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran's VA treatment records note his treatment for eczema on his elbows, benign pigment nevus on his back, seborrheic dermatitis on his scalp, and itchy hands and feet due to an allergy to contact dye; however, a diagnosis of jungle rot and a diagnosis of chloracne or an acneform disorder consistent with chloracne is not shown in the record. He has not identified an additional private provider from whom he sought treatment for the claimed jungle rot or chloracne or submitted a medical opinion that indicates or suggests that he has had jungle rot or chloracne or pathology consistent with chloracne, or that relates another diagnosed skin disability to his service. The medical evidence of record does not show that the Veteran has (or at any time has had) chloracne (or an acneform disorder consistent with chloracne) or jungle rot. He is competent to report visible and physical symptoms (such as outbreaks) of skin disabilities such as acne, because they are capable of his lay observation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, whether such symptoms represent chloracne (or an acneform disorder consistent with chloracne) or jungle rot is a medical question that is inherently medical in nature (medical training is needed to recognize skin pathology as a lesion characteristic of chloracne or jungle rot). See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). The Veteran's belief that that he has a skin disability that is chloracne and/or jungle rot is not competent evidence he has such disease. Because VA providers have not found any related skin pathology and the Veteran has not submitted private treatment records showing a diagnosis of chloracne or jungle rot, there is no basis for seeking a medical opinion addressing whether the Veteran, in fact, has jungle rot or a chloracne/chloracne-type disability. In summary, there is no competent evidence that the Veteran has or ever had jungle rot or chloracne or an acneform disorder consistent with chloracne. Consequently, the threshold requirement necessary to substantiate his claims of service connection for chloracne and jungle rot are not met. Without competent evidence of chloracne or jungle rot there is no valid claim of service connection for such disabilities. See Brammer, 3 Vet. App. at 225. The evidence persuasively favors against the claims of service connection for chloracne and jungle rot, as such, the benefit of the doubt doctrine is inapplicable, and the claims, therefore, are denied. 3. Entitlement to service connection for renal stenosis is denied. The Veteran's STRs are silent for complaints, treatment, or diagnoses pertaining to a kidney disability, to include renal stenosis. A January 2020 VA treatment record notes that a recent ultrasound demonstrated possible findings consistent with renal artery stenosis. A May 2021 VA treatment record notes that the Veteran has renal artery stenosis. It is not in dispute that the Veteran has renal stenosis. The evidence does not show that renal stenosis was manifested in service. The Veteran's STRs are silent for complaints, treatment, findings, or diagnoses related to renal stenosis, and he does not allege that the claimed disability was manifested during (or within a year following) his service. Post service treatment records first show treatment for the claimed disability many years after service, as noted above. Consequently, service connection for renal stenosis on the basis that such disease/disability became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. §§ 1112, 1137) is not warranted. The Veteran does not allege that he set foot in Vietnam. He alleges that he was exposed to herbicide agents (resulting in his acquiring renal stenosis) in his duties serving on the U.S.S. Ranger in the coastal waters of Vietnam. As noted above, to warrant a presumption of exposure to herbicide agents/Agent Orange in service, the evidence must show that the Veteran served within the land borders (including the inland waters) of Vietnam or served on a ship within 12 nautical miles seaward of the line defined by the BWN Act. A March 2021 Records Research Response for the USS Ranger (CVA 61) notes that VA was unable to concede herbicide exposure for the Veteran based on the ship locator tool and other VBA approved tools, and a March 2021 VA Memorandum notes that exposure to herbicides could not be conceded as the evidence of record did not show the Veteran had duty or visitation in the Republic of Vietnam or on its inland waterways or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. Also, regarding the PACT Act of 2022, the Veteran has not reported, and his service records do not show, that he had service in Thailand, service in Laos, service on or near Johnston Atoll, or service in Cambodia. Regarding whether the Veteran had service in Guam or American Samoa or in the territorial waters off of Guam or American Samoa from January 9, 1962, through July 31, 1980, the ship locator tool and associated map that was generated to plot the USS Ranger's course during the time that the Veteran was aboard, notes that the ship, on its route to and from the South China Sea from its port on the Pacific coast of the United States, kept to the north and west of the Philippines, and such course would greatly exceed the distance covered by the territorial waters of Guam and American Samoa. Accordingly, he is not shown to have been exposed to herbicide agents in service, and his claims may not be considered under the presumptive provisions of 38 U.S.C. § 1116. The analysis turns to whether service connection for renal stenosis may be granted based on an affirmative showing of a nexus to service, considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d) (direct service connection). The Veteran has not provided any evidence that his renal stenosis may somehow otherwise (than by virtue of alleged exposure to herbicide agents) be related to his service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). There is no indication in his post service medical records that his renal stenosis, diagnosed many years after his separation from service, may be directly related to service (other than by virtue of alleged exposure to Agent Orange). The lengthy interval between service and the earliest post service clinical documentation of a diagnosis of renal stenosis, is of itself a factor for consideration against a finding of service connection for such disability. The Board notes that at the September 2022 Board hearing, the Veteran raised additional theories of entitlement (i.e., additional ways in which he asserts he may have been exposed to herbicides and/or Agent Orange during service). He related that he was exposed to some type of chemical at Monterey Naval Air Facility and that he was exposed to Agent Orange when he cleaned the airplanes that flew missions (allegedly dropping Agent Orange) from the USS Ranger. Under the Appeals Modernization Act (AMA), the Board may not remand for an adequate medical opinion based on a new theory of entitlement raised. (It may only consider, but not remand for development based on, new and relevant evidence submitted in the 90-day period after the Board hearing.) However, under the AMA, the Board may remand for 1) correction of an error on the part of the AOJ to satisfy its duties under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal or 2) for correction of any other error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802. Here, the additional theories regarding the Veteran's possible exposure to Agent Orange were initially raised at the Board hearing; therefore, the Board may not remand for further development on such theories of entitlement, and remand for a pre-decisional duty to assist error is not necessary. The evidence persuasively favors against the claim of service connection for renal stenosis, as such, the benefit of the doubt doctrine is inapplicable, and the claim, therefore, is denied. John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bayles, James J. 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.