Citation Nr: 22018759 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-21 166 DATE: March 30, 2022 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran served aboard the USS Agerholm (DD 826) during the Vietnam era; it did not enter the inland waterways at any time during his service aboard that ship. It is also not shown that his service included duty in or visitation to Vietnam, therefore he is not entitled to a presumption for exposure to herbicide agents (Agent Orange), nor is there probative evidence of such exposure. 2. The Veteran's hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The Veteran's diabetes mellitus, type II did not have its onset in service, or manifest to a compensable degree within one year of service discharge and is not related to service including exposure to herbicidal agents (Agent Orange). CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Navy from June 1972 to January 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in January 2019, the Board remanded this matter for additional development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Hypertension and diabetes mellitus are considered a "chronic" disease under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic' disease became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). Entitlement to service connection for hypertension is denied. In his January 2017 Notice of Disagreement, the Veteran reported that he was informed while in the Navy, that he had elevated blood pressure. No evidence of elevated blood pressure was noted in the available service treatment records. The Veteran has a current diagnosis of hypertension. See VA Treatment Records, dated September 1998. The Veteran service treatment records are silent for any complaints, treatment, or diagnoses of hypertension. All blood pressure readings and blood sugar testing were normal. Pursuant to the January 2019 Board remand, the Veteran underwent a December 2019 VA examination to assess whether his hypertension is related to service. Following interview and examination of the Veteran as well as review of the claims file, the examiner stated, the Veteran's "current [hypertension] is less likely than not incurred in or caused by the claimed in service condition due to lack of evidence, therefore I cannot positively opine." In September 2020, the RO sought to obtain an addendum opinion, finding that the December 2019 VA examiner did not provide an adequate rationale. Accordingly, an October 2020 VA addendum opinion was obtained. The examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated, Based on a review of the medical information provided and the medical literature it is my medical opinion that it is less likely than not that that the Veteran's hypertension was caused by the Veteran's active service, to include the episode of chest pain and reported tachycardia. Currently the Veteran meets the JNC 8 guidelines for [hypertension] for a 70 year old based on his systolic BP. The e[-]file and the Veteran's records are quiet of any mention of HTN and all of the BPs recorded during service are normal. There is an episode [in July 1972] with report of [chest pain] for a year and tachycardia but had normal pulse on [examination] and there are no other issues in the chart and BP on separation was normal. There is no information in the chart to establish a nexus and therefore it is less likely than not associated with service. On review, service connection on a presumptive basis is not warranted. Notably, hypertension was diagnosed approximately 18 years after separation from active duty and neither the Veteran nor the medical evidence suggest that the Veteran's hypertension was present since separation from service. To this end, as noted by the Board in the January 2019 remand, in September 1998 VA treatment records, the Veteran reported receiving treatment with a private physician, Dr. B. Pursuant to the January 2019 Board remand, reasonable efforts were made to obtain these records. However, the Veteran did not respond to a September 2019 VA Subsequent Development Letter requesting additional evidence in support of his appeal. The Board notes that the Veteran has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). For these reasons and bases, service connection on a presumptive basis is not warranted. Service connection on a direct basis is also not warranted. In this regard, the Board assigns higher probative value to the VA examiner's opinion than the Veteran's lay assertion. While the Veteran is competent to describe certain observable symptoms, under the fact of this case, he is not shown to possess the necessary medical expertise to provide a nexus opinion showing a relationship between the diagnosed hypertension and his service. In this regard, the Board acknowledges the Veteran's belief that he had symptoms of hypertension during service; however, the medical evidence during service and post-service does not show evidence of hypertension that was related to service and hypertension was not diagnosed until approximately 18 years after separation. Accordingly, the Board finds the most probative evidence of record persuasively weighs against finding that the Veteran's hypertension is causally or etiologically related to service. Therefore, the claims is denied, and the benefit-of-the-doubt doctrine does not apply. Entitlement to service connection for diabetes mellitus, to include as secondary to exposure to herbicidal agents, is denied. The law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). Section 3.307(d)(6) provides that 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. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that 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 C.F.R. § 3.307(d)(6)(iii). 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. For the purposes of § 3.307, 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 Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Diabetes mellitus, Type II is associated with herbicide exposure for purposes of this presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). VA General Counsel has determined that in order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep-water vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute "service in the Republic of Vietnam" for the purposes of 38 U.S.C. § 101(29)(A). VAOPGCPREC 27-97. In short, a veteran must have been physically present on the landmass or inland waters of the Republic of Vietnam in order to establish qualifying service in Vietnam. See Haas, 525 F.3d at 1197. VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to herbicide exposure but must also determine whether the disability was otherwise the result of active service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. 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 considering the evidence of record under the laws and regulations, the Board concludes that the Veteran is not entitled to service connection for diabetes mellitus, Type II. Here, the Veteran reported in his April 2017 VA Form 9, that he was diagnosed with diabetes eight months after his discharge from the Navy. As a preliminary matter, the Board notes that the Veteran's service treatment records are entirely negative for any complaints, treatment, or diagnosis of diabetes. The post-service medical evidence is similarly negative for complaints or findings of diabetes for many years after the Veteran's separation from service. In fact, the earliest record reflects a diagnosis of type II diabetes in June 2002 VA treatment records, which was over two decades following his separation from service. Moreover, there is no indication in the evidence of record that any medical professional has related the Veteran's current type II diabetes his active service or any incident therein. The Veteran has not contended otherwise. Instead, the Veteran has contended that he developed diabetes mellitus, Type II as a result of Agent Orange exposure. In this regard, the Veteran's military personnel records show that he was assigned to USS Agerholm DD 826 between October 4, 1972 through July 25, 1975. A September 2021 response from the Veterans Benefits Administration, Office of Field Operations, Military Records Research Center explained that comprehensive research was completed on the Veteran's claimed exposure to herbicides while serving aboard the USS AGERHOLM (DD-826) from October 4, 1972 to July 25, 1975. The following sources were reviewed in an attempt to substantiate the Veteran's claimed exposure: the 1972, 1973, 1974, and 1975 command history reports submitted by the USS AGERHOLM. However, it was concluded that there was no evidence to support documentation of the Veteran's claimed event. Additionally, a September 2021 VA Herbicide Exposure Verification Memorandum indicated 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. Although the Board acknowledges the Veteran's contention that he was exposed to herbicides on the USS Agerholm, as discussed above, the ship's presence in Vietnam at any time during his service on board has not been verified. Thus, the presumption does not apply and the Veteran's claim must be denied on this basis. That said, service connection may still be established with proof of direct causation. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Having carefully reviewed the record, the Board finds that the criteria for service connection for diabetes mellitus, type II, are not met. As noted above, service treatment records fail to reveal any signs or symptoms suggestive of diabetes mellitus, type II. There is also no evidence that diabetes mellitus, type II manifested to a compensable degree within one year of separation from his period of active service in 1980. 38 C.F.R. §§ 3.307, 3.309. To this end, as noted by the Board in the January 2019 remand, in his April 2017 VA Form 9, the Veteran identified two providers who had treated him for diabetes mellitus prior to seeking treatment from VA, Dr. A. S. and Dr. M. B. With regard to records from Dr. A.S., the Veteran stated that Dr. A. S. was deceased, that his office was closed, and the records were unable to be obtained. Yet, pursuant to the January 2019 Board remand, reasonable efforts were made to obtain these records. The Veteran, however, did not respond to a September 2019 VA Subsequent Development Letter requesting additional evidence in support of his appeal. The Board notes that the Veteran has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). Post-service medical records reflect a diagnosis of diabetes mellitus type II as early as June 2002, approximately 22 years after the Veteran's separation from service. See VA treatment records, dated June 2002. These clinical records do not suggest that diabetes mellitus type II originated during military service and there is no evidence of record to suggest its presence prior to the indicated date of diagnosis. Based on the foregoing, there is no probative and competent medical evidence of record linking the Veteran's diabetes mellitus, type II to his military service including herbicide exposure. The Board acknowledges that the Veteran has not been afforded a VA examination in connection with his claim for service connection. Generally, a VA medical examination or opinion is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, there is no competent and credible evidence to suggest that the Veteran's current diabetes mellitus disability may be related to service. To the extent the Veteran argues that a relationship exists between his diabetes mellitus, type II and service, such an assertion treads into the realm of medical expertise. Specifically, he lacks the requisite medical expertise to provide a competent medical opinion as to the etiology of his diabetes mellitus, type II particularly when, as in this case, it involves allegations that it was caused by exposure to an environmental hazard such as herbicides. This is a medical matter, requiring medical training and expertise, thus not susceptible to lay opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). In conclusion, the Board finds that the most probative evidence of record persuasively weighs against the Veteran's claim for service connection for diabetes mellitus, type II. The benefit of the doubt rule does not apply. The appeal is denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Griffith, Shari 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.