Citation Nr: 22032905 Decision Date: 06/06/22 Archive Date: 06/06/22 DOCKET NO. 16-54 586 DATE: June 6, 2022 ORDER Service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The Veteran's diabetes mellitus 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; the Veteran's exposure to herbicide agent exposure in service is not established. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1972 to December 1974. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In April 2020, the Board remanded the claims for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for diabetes mellitus. The Veteran, and his representative, contends that his diabetes mellitus stems from in-service exposure to herbicide agents. Specifically, the Veteran argues that he was exposed to herbicide agents when his naval vessel anchored at the shore of the Republic of Vietnam. See Hearing Transcript 7-11 (November 2019). In essence, the Veteran argues that he was exposed to herbicide agents while in the territorial sea of the Republic of Vietnam. See Appellate Brief (May 2022) ("In this case appellant served in the waters offshore of the Republic of Vietnam aboard the USS Fresno, thus exposure to an herbicide agent should be presumed."). The Board concludes that the evidence of record persuasively weighs against finding that the Veteran's diabetes mellitus was shown as chronic in service; manifested to a compensable degree within the applicable presumptive period; continuity of symptomatology being established; or that the claimed disability is otherwise etiologically related to an in-service injury or disease, to include alleged in-service exposure to herbicide agents. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Certain chronic diseases, such as diabetes mellitus, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to an herbicide agent unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961, and ending on May 7, 1975, for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961, and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). 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." 38 C.F.R. § 3.307(a)(6)(iii). The phrase "service in the Republic of Vietnam" includes the 12-nautical-mile territorial waters of the Republic of Vietnam. 38 U.S.C. § 116A(d). Service connection based on exposure to designated herbicide agents (e.g., Agent Orange) will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. The diseases deemed associated with herbicide exposure for purposes of the presumption include diabetes mellitus. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309. Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, service connection may be established with proof of direct causation. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (providing that the provisions set forth in Combee are equally applicable in cases involving claimed Agent Orange exposure). As a preliminary matter, the Board finds that the evidence does not support a finding that the Veteran had herbicide agent exposure in service. The Board acknowledges the Veteran's belief that he had exposure while aboard U.S. naval vessels, to include the USS New Orleans and USS Fresno. Indeed, military personnel records confirm that he served aboard these naval vessels. However, VA research disclosed that the naval vessels were not within the 12-nautical-mile territorial waters of the Republic of Vietnam during the Veteran's period of active duty. In this regard, Records Research Responses reflect that a professional researcher from the Veterans Benefits Administration reviewed the ship histories for the naval vessels and found no evidence to support the Veteran's claimed exposure to herbicide agents. See Other (February 2022) & Other (June 2021). As the evidence does not support finding that the naval vessels had service in the territorial sea of the Republic of Vietnam, presumptive service connection for diabetes mellitus is not warranted. The Veteran has offered no other basis of exposure to herbicide agents during his active service for the Board's consideration. Therefore, the Veteran's exposure to herbicide agents is not established and service connection may not be granted based on the presence of diabetes on the list of diseases enumerated as presumptively associated with herbicide agent exposure. Next, regarding the theory of direct service connection, the Veteran has not alleged that his diabetes mellitus had its onset during service, manifested within one year of service, or is otherwise directly related to service. Furthermore, the medical evidence of record fails to suggest a correlation exists between the Veteran's diabetes mellitus and his service. The Veteran's service treatment records (STRs) show no clinical findings consistent with diabetes mellitus or symptoms indicative thereof. For instance, the Veteran's separation examination report, dated in December 1974, reflects that the Veteran was evaluated as having a clinically normal endocrine system. Indeed, the summary of defects and diagnoses section is absent for any diagnosis, symptom, or sign for diabetes mellitus. While medical records associated with the claims file show that the Veteran is currently diagnosed with diabetes mellitus, the earliest mention of complaints or treatment related to diabetes is decades after his discharge from service. See, e.g., Medical Treatment Record-Government Facility (November 2008). Indeed, treatment record, dated in February 2006, shows that the Veteran denied a past history for diabetes mellitus. This passage of time is a factor for consideration when making a finding of direct service connection. See Maxson v. West, 12 Vet. App. 453 (1999). Post-service medical records, additionally, do not include any medical opinion regarding a connection between the current diabetes mellitus and service. The Board has also considered the Veteran's lay statements. In particular, the Veteran's contention that his diabetes mellitus stems from exposure to herbicide agents. However, the Board finds that he has not been shown to be competent to identify chemicals, to include herbicide agents, by sight, touch, or any other of his own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). Further, to the extent that he argues that symptoms of diabetes mellitus had their onset during service or the presumptive period, the Board finds he is not competent to opine on the etiology of his symptoms given that diabetes mellitus was not shown in service or within the presumptive period and that he lacks the requisite medical expertise to formulate a medical opinion on whether his disability is related to an in-service injury or disease. This is a complex medical determination beyond the ken laypersons that cannot be answered based on observation or analysis of a layperson. Indeed, this is an intricate matter that requires an understanding of various bodily systems. Therefore, the Veteran, as a layperson, does not have the medical or scientific training or expertise to identify herbicide agents or render a competent opinion as to whether his active duty service resulted in herbicide agent exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2011); Layno, 6 Vet. App. at 469. The Board, consequently, assigns greater probative value to the Records Research Responses and the Veteran's military personnel records, which, collectively, show that his conditions of service did not involve exposure to herbicide agents. The Board additionally assigns greater probative value to the Veteran's in-service and post-service medical records, which contain no complaints or treatment of diabetes mellitus until decades after service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Lastly, the Board assigns greater probative value to the decades intervening active service and the first documented findings or complaints of diabetes mellitus. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). On balance, the weight of the most persuasive evidence is against the claim. Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As a final note, the Board finds that VA had not duty to afford an examination or obtain an opinion in this matter. The duty to do so is triggered when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 claimant 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) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, with respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. Given the above discussion, there is no evidence of complaints of, treatment for, or a diagnosis for diabetes mellitus during service and the Veteran has not identified evidence demonstrating that his disability had its onset in or is otherwise related to service. Further, while the Veteran has generally contended that he was exposed to herbicide agents in service, he, however, has not provided specific evidence of in-service exposure and the record does not reveal such exposure. The Veteran additionally has not been shown to be competent to identify chemicals, to include herbicide agents, by sight, touch, or any other of his own senses. See Layno, 6 Vet. App. at 470; see also 38 C.F.R. § 3.159(a)(2). A layperson's generalized assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). Therefore, the Board finds that the duty to provide an examination or medical opinion has not been triggered. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (explaining that something more than a veteran's conclusory, generalized statement is needed to trigger VA's duty to assist by providing a medical nexus examination). REASONS FOR REMAND Aside from the below explicit findings, in remanding these matters, the Board makes no further findings, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for hepatitis C is remanded. The Veteran, and his representative, contends that the Veteran's disability stems from service. First, the Veteran argues that his disability is related to in-service injury, described as a laceration or cut to the skin. See Hearing Transcript at 5 (November 2019). In the alternative, the Veteran argues that his disability stems from in-service inoculations administrated through air gun (i.e., jet injector). See NOD (July 2014). To ensure that VA has met its duty to assist, the claim must be remanded for further development. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). First, the record reveals competent evidence of a current disability. In this regard, VA treatment record, dated in February 2016, reveals that the Veteran's hepatitis C was classified as an active problem in a computerized problem list. Next, the record reflects competent, credible evidence of in-service injury, described as a laceration or cut to the skin. In this regard, the Veteran competently, and credibly testified to experiencing in-service lacerations or cuts. This lay report is also corroborated by a September 1974 STR showing that the Veteran complained of multiple lacerations to the right hand. Thus, the Board finds competent, credible evidence of in-service injury, described as a laceration or cut to the skin. Further, the record also reflects competent, credible evidence of in-service injury, described as in-service inoculations administrated through air gun. Here, the Veteran provided competent, credible lay reports of in-service inoculations administrated through air gun. In this regard, STRs reflect that he received various immunizations, to include smallpox, typhoid, and cholera. Although the Veteran's STRs do not show how each vaccination was administrated, the Board finds that the absence of documentation cannot be used against the Veteran's credibility alone since the occurrence of such would not ordinarily be recorded. The Board, therefore, cannot legitimately infer from its absence that a vaccination did not occur through air gun. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Buchanan, 451 F.3d at 1336-37 (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). Therefore, the Board finds competent, credible evidence of in-service injury, described as in-service inoculations administrated through air gun. Given the above, the record reveals sufficient evidence to warrant a VA examination and medical opinion. Here, treatment records and lay statements reflect competent evidence of a current disability or persistent or recurrent symptoms of a disability. The record also reveals competent, credible evidence of in-service injuries, as described above. The record therefore indicates competent, credible evidence of current disability, or persistent or recurrent symptoms of a disability, and in-service injuries. VA, however, has not obtained a medical opinion or examination in this matter. It is noted that VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon, 20 Vet. App. at 81-82. Therefore, given the available evidence and the Veteran's statements and sworn testimony, there is competent, credible evidence of a potential relationship between the Veteran's disability and his military service to warrant remand for a VA examination and medical opinion. See McLendon, 20 Vet. App. 79. The Board observes that the evidence needed to trigger VA's duty to furnish a medical opinion or examination is low. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran, and his representative, contends that his acquired psychiatric disorder is related to, or had its onset during, service. It is further argued that the Veteran has PTSD, and it is due to "fear of hostile military or terrorist activity." In this regard, the representative argues that while "aboard the USS Fresno the Philippinos [sic] who served the officers did not want [the Veteran] there and tried to throw him overboard and he refused to go back on the ship." See Appellate Brief (May 2022). For reasons explained below, the Board finds that remand is necessary. First, an August 2013 VA medical examination reflects that the Veteran did not have a diagnosis of PTSD pursuant to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). A corresponding medical opinion, however, reflects that the examiner found that the Veteran met the criteria for depression and alcohol abuse, but rationalized that his acquired psychiatric disorder was not related to, or had its onset during, service. The Board finds the VA examination report, and its corresponding medical opinion, inadequate for adjudicative purposes. VA regulations require evaluation of mental disorders using the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). 38 C.F.R. § 4.125. This applies to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014 (i.e., have not yet been certified to the Board). See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In this instance, this appeal was certified to the Board after August 4, 2014, and the DSM-5 applies to all applications for benefits received by VA or pending before the AOJ on or after August 4, 2014. 38 C.F.R. § 4.125. The VA examination, and its corresponding medical opinion, were, however, formulated pursuant to the DSM-IV. Thus, given the above, the Board may not rely upon the VA examination report, and its corresponding medical opinion, in its present form and, therefore, finds the evidence is inadequate for adjudicative purposes as the Board cannot rely on evidence VA has determined to be undependable. Golden v. Shulkin, 29 Vet. App. 221 (2018) (holding the Board, as an adjudicator, cannot rely on evidence that expert consensus as adopted by VA has determined to be unreliable). Accordingly, remand is necessary for an adequate examination and medical opinion. Where VA provides an examination or obtains an opinion, it must be adequate. Barr, 21 Vet. App. 303. The matters are REMANDED for the following actions: 1. Attempt to corroborate the Veteran's in-service stressor(s). If more details are needed, contact the Veteran to request the information. 2. Obtain all VA treatment records dated from August 2016 to the Present. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his hepatitis C. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with the claimed hepatitis C disability. NOTE (1): The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (2): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (3): A negative medical opinion may not dismiss the Veteran's competent report of symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. The clinician must opine on: Whether the Veteran's hepatitis C, approximately at least as likely as not, (1) had its onset in service or (2) is related to an in-service injury, event, or disease. Consider and expressly address conceded in-service injuries, described as (i) a laceration or cut to the skin and (ii) in-service inoculations administrated through air gun. Explain. 4. After the Veteran's reported stressor(s) has been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with his claimed disability. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: (a) Whether it is, approximately at least as likely as not, that the Veteran has, or has had, PTSD at any time during the pendency of the claim or recent to the filing of the claim. Explain. (b) If the Veteran is diagnosed with PTSD, the clinician must explain how the diagnostic criteria are met and opine on whether it is approximately at least as likely as not related to any conceded in-service stressor. Explain. (c) If any other acquired psychiatric disorder is diagnosed, the clinician must opine on whether the diagnosed disorder is, approximately at least as likely as not, related to an in-service injury, event, or disease. Explain. 5. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.