Citation Nr: 22018976 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 18-30 600 DATE: March 31, 2022 ORDER Entitlement to service connection for diabetes mellitus type II (diabetes), to include as due to exposure to herbicide agents, is granted. Entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents, is granted. Entitlement to service connection for a right hand disability is denied. Entitlement to service connection for a left hand disability is denied. Entitlement to service connection for a residuals of pneumonia disability is denied. FINDINGS OF FACT 1. The Veteran's diabetes is due to his exposure to herbicide agents while in service. 2. The Veteran's heart disability is due to his exposure to herbicide agents while in service. 3. The Veteran does not have a right hand disability that was incurred in or due to his time in service. 4. The Veteran does not have a left hand disability that was incurred in or due to his time in service. 5. The Veteran does not have a residuals of pneumonia disability that was incurred in or due to his time in service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a heart disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for a right hand disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a left hand disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a residuals of pneumonia are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1966 to March 1970. These matters are on appeal from an April 2016 rating decision by a Department of Veterans Affairs (VA) regional office (RO). The Veteran was scheduled for a hearing before a Veterans Law Judge. However, he did not appear for his scheduled hearing and no good cause was offered and therefore, the claims will be adjudicated on the current record. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In addition to direct service connection as discuss above, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. Veterans 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, or in or near the Korean DMZ between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with exceptions not applicable in the instant case. 38 C.F.R. § 3.307 (a)(6)(ii). The Veteran has been diagnosed with diabetes and a heart disability that qualifies as ischemic heart disease (See July 2015, March 2020 examinations), both of which are subject to presumptive service connection under the above-discussed regulation. While there is some question regarding whether the Veteran served aboard a ship during the time it was in the qualifying waters of Vietnam, ships logs, military personnel records, and a March 2020 VA memo conceded herbicide exposure tend to show the Veteran had qualifying service which exposed him to herbicide agents. Therefore, the claims will be granted. The Board notes that the March 2020 examinations for his heart and diabetes disabilities did not include an etiology opinion, the Board finds this deficiency to not be prejudicial as the Veteran's claims have been granted. Turning to the Veteran's claims for a bilateral hand and residuals of pneumonia claims, the Board does not find in the Veteran's file a diagnosis of either condition. The Veteran's service treatment records (STRs) indicate the Veteran was seen for pneumonia in October 1969. The Veteran was admitted and then discharged 12 days later to full duty with no indication of any lingering or ongoing effects of his illness. The Veteran had examinations for his bilateral hand disability and his residuals of pneumonia disability in February 2016. The Veteran's file was reviewed and the examiner opined the Veteran did not have a currently diagnosed hand disability or residuals of pneumonia disability. The Veteran said he was pulling a rope in service and his hands were smashed. The Veteran said he had nails pulled off and his palms had friction burns. The condition resolved and the Veteran reported having stiffness and tightness in both hands which started about two years prior to the examination. The examiner reported the Veteran had been diagnosed with pneumonia that resolved in 1969. However, the examiner did not note any currently diagnosed respiratory problems. The examiner reported the Veteran's pneumonia 46 years ago was treated, leaving no permanent damage. The examiner noted the Veteran was a smoker with coronary artery disease and obesity and that his symptoms were more likely caused by heart disease and therefore, his claimed residuals of pneumonia were less likely than not incurred in or due to his time in service. The examiner also opined the Veteran's hands healed and his current symptoms were not related to his time in service, providing evidence against this claim. The Board has also reviewed the Veteran's treatment records and notes instances where the Veteran has been noted to have impaired hand function (see e.g. August 2018 treatment records) and self-reported a history of pneumonia (see October 2015 treatment records) However, no diagnoses accompanied those notations and there is no other indication that the Veteran has a diagnosed hand condition or residuals of pneumonia disabilities that are at least as likely as not related to his time in service. Regarding the denied claims above, the Board acknowledges the Veteran's statements that he believes his conditions are due to his time in service, to include his exposure to herbicide agents. The Board also understands the Veteran continues to seek treatment for his medical problems and that his conditions continue to give him problems and cause him distress. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on medical issues, such as the nature and etiology of medical conditions, such as those discussed above. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places more probative weight on the objective medical evidence of record which does not indicate the Veteran has bilateral hand and pneumonia disabilities that were incurred in or due to his time in service. (Continued on the next page) It is important for the Veteran to understand that these medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his problems are the result of service, providing a highly clear basis for the opinion. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the evidence is not in approximate balance or nearly equal, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.