Citation Nr: 22055167 Decision Date: 09/27/22 Archive Date: 09/27/22 DOCKET NO. 20-11 868 DATE: September 27, 2022 ORDER Entitlement to service connection for Parkinson's disease, to include as due to herbicide exposure, is denied. Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure, is denied. Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The evidence of record fails to show that the Veteran had active service in the Republic of Vietnam or in the territorial waters of Vietnam. 2. The record reveals that the Veteran does not have a current diagnosis of Parkinson's disease. 3. The evidence of record does not support a finding that the Veteran's ischemic heart disease was incurred in, aggravated by, or otherwise related to, his military service. Ischemic heart disease was not diagnosed within one year of separation from service or manifested to a compensable degree within one year of service. 4. The evidence of record does not support a finding that the Veteran's diabetes mellitus type II was incurred in, aggravated by, or otherwise related to, his military service. Diabetes mellitus type II was not diagnosed within one year of separation from service or manifested to a compensable degree within one year of service. CONCLUSIONS OF LAW 1. The criteria for service connection for Parkinson's disease have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1966 to December 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded these claims in September 2021 for further development. The Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Service Connection In the absence of proof of a present disability there can be no valid claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). 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). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Herein, chronic diseases encompass ischemic heart disease (covering all valvular heart diseases), Parkinson's disease (as an organic disease of the nervous system) and diabetes mellitus type II. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Id.; 38 C.F.R. §§ 3.303 (b), 3.309. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The three claimed disabilities here are presumptive disabilities due to in-service herbicide exposure. 38 C.F.R. § 3.309(e). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the above, the United States Court of Appeals for the Federal Circuit has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F. 3d 1039, 1043-44 (Fed. Cir. 1994). The Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicides but must also determine whether his disability is otherwise the result of active service. Thus, the fact that the Veteran may not meet the requirements of a presumptive regulation does not preclude establishing, in the alternative, service connection by way of proof of actual direct causation. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the relative weight of evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; see also Lynch v. McDonough, 21 F. 4th 776, 781-82 (Fed. Cir. 2021) (holding that only when the evidence persuasively favors one side, or another is the benefit-of-the-doubt doctrine not for application). 1. Parkinson's disease The Veteran is seeking service connection for Parkinson's disease which he believes is the result of herbicide exposure. Service treatment records do not show any indications of complaints or treatment for Parkinson's disease. The Veteran's November 1969 separation examination included no notation of disability or symptoms related to Parkinson's disease. In the Veteran's November 1969 separation report of medical history, a clinician reported all systems were normal, except for the Veteran's musculoskeletal system (where a clinician noted a condition of pectus excavatum). Upon scrutiny of the evidence of record, no clinician has provided a diagnosis of Parkinson's disease. Absent this required proof of a present disability, there can be no valid claim because there is no present disability to relate or attribute to the Veteran's service. Romanowsky, 26 Vet. App. 289. Accordingly, the Veteran's claim for entitlement to service connection for Parkinson's disease, to include as due to herbicide exposure, is denied. The Board notes that the Veteran has not been afforded an examination regarding his claimed disability. However, the Board finds that an examination is not required for the Veteran's condition because there is no evidence of continuity of symptoms or a causative link between the claimed condition, diagnoses of the Veteran's conditions, and an in-service event, so as to trigger the duty to provide a VA examination. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). 2. Ischemic heart disease 3. Diabetes mellitus type II The Veteran is seeking service connection for ischemic heart disease and diabetes mellitus type II, which he believes are the result of herbicide exposure. A review of service treatment records fails to disclose any indications, complaints, or treatment for ischemic heart disease and/or diabetes mellitus type II. In the Veteran's November 1969 separation examination, the clinician did not report any disability and/or symptoms related to either heart problems or diabetes mellitus type II. In the associated November 1969 separation report of medical history, the Veteran did not indicate that he had any health issues involving his heart or sugar levels. The Veteran's private medical records from November 2015 show a diagnosis and treatment for diabetes mellitus type II. VA treatment records from May 2017 indicate the Veteran was diagnosed with coronary artery disease in 2012, and thereafter treated for this disease. However, no clinician has provided an etiological opinion for either of these two disabilities. In an August 2010 lay statement, the Veteran reported that he was stationed at the United States Naval Station on Midway Island from June 1966 through July 1967. While stationed on Midway, the Veteran asserts that he flew to Vietnam to retrieve the bodies of those killed in action. The Veteran stated that on at least one occasion he flew to Da Nang to load body bags onto a C-130 (military transport aircraft). During these body-bag removals, the Veteran claims that he was exposed to herbicide upon loading and unloading, and during transfer to the Midway morgue. In his November 2017 notice of disagreement (NOD), the Veteran reiterated the same contentions. In a September 2019 lay statement, the Veteran reported that while in Da Nang in August 1966, he spoke with a retired lieutenant who was in charge of the hospital at Midway who confirmed the Da Nang flights. The Veteran also submitted a copy of a December 2018 email from this retired Lieutenant who explained that many casualties were repatriated to the United States mainland through Midway during the war. Here, the Veteran also reported that the Colonel explained that Midway is no longer an active military base, and records are difficult to find. As such, the Colonel suggested checking with records department at the Tripler Army Hospital or the Naval Clinic in Pearl Harbor, Hawaii. In March 2020, the Veteran also submitted photographs (purportedly of himself and the retired Colonel at Midway). The Board appreciates these photographs, but they do not provide any type of verification of the above-reported events. As discussed below, VA has exhaustively sought to verify the Veteran's claims. The Board takes especial note of the following efforts: (1) In September 2017, a memorandum was issued regarding a formal finding on the inability to verify exposure to Agent Orange. The memorandum explained that the Veteran did not provide a specific enough timeframe in regard to the assertion that he flew to Vietnam. Further, the memorandum stated that, although the Veteran was on the U.S.S. N. K. Perry, and it had operated in the territorial waters of Vietnam, it did so prior to the Veteran joining the ship. (2) In an October 2019 response from the Defense Personnel Records Information Retrieval System (DPRIS), it was explained that although the U.S.S. N. K. Perry was in Vung Ro Bay in South Vietnam in November 1966 and the Gulf of Tonkin in December 1966, history does not document that the ship docked, transited inland waters, or that the ship's personnel ever stepped foot in the Republic of Vietnam. Additionally, the response stated that the incidents described by the Veteran are not recorded in the ship's history. The Logbooks from the U.S.S. N. K. Perry, show that the Veteran was aboard from December 28, 1967, through December 4, 1969. Although the Veteran was on the U.S.S.N. K. Perry, and it had operated, at times, in, and around the Republic of Vietnam, it did so prior to the Veteran assignment to the ship. (3) In February 2022, a professional researcher from the Veterans Benefits Administration, Office of Field Operations Service, Military Records Research Center, completed comprehensive research on the claimed herbicide exposure while serving aboard the U.S.S. N. K. Perry (DD-883) from December 28, 1967, to December 4, 1969. The 1967, 1968, and 1969 command history reports submitted by U.S.S. N. K. Perry were reviewed in an attempt to substantiate the claimed exposure event. No evidence was located to support documentation of the claimed exposure event. (4) In March 2022, VA requested any medical records for the Veteran from the Tripler Army Medical Center and the Navy Health Clinic in Hawaii. VA received a response from the Tripler Army Medical Center in March 2022. The Tripler Army Medical Center indicated that there were no medical records for the Veteran. In April 2022, VA again requested medical records from the Navy Health Clinic in Hawaii. In April 2022, VA informed the Veteran that they were unable to obtain any medical records from either the Tripler Army Medical Center or the Navy Health Clinic in Hawaii. (5) In May 2022, the Veteran's claims folder was sent to VA Military Records Research Center to attempt to verify service in Vietnam or exposure to herbicides. A professional researcher from the Veterans Benefits Administration, Office of Field Operations Service, Military Records Research Center, completed comprehensive research on the claimed herbicide exposure while serving with the US Naval Station Midway Island from June 25, 1966, to July 15, 1967, stating the Veteran was assigned to Special Services X Division and flew aboard C-130's into Da Nang to retrieve deceased bodies and bring them back to the morgue. The 1966 and 1967 Command History Reports submitted by the US Naval Station Midway Island were reviewed in an attempt to substantiate the claimed incident. No evidence was located to support documentation of the claimed incident. (6) Lastly, in May 2022, an employee from the Veterans Benefits Administration, Office of Field Operations, completed comprehensive research on the Veteran's claimed exposure event, claiming that the Veteran was attached to USS Columbus (CG 12) in November 1969. The 1969 Command History submitted by the USS Columbus (CG 12) was reviewed in an attempt to substantiate the Veteran's claimed exposure. No evidence was located to support documentation of the claimed exposure. A May 2022 memo concluded 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. Thus, the Veteran's contended service in the Republic of Vietnam cannot be verified. As a threshold matter, the Board finds that the evidence of record fails to establish that the Veteran was exposed to herbicides during his military service. Thus, the Veteran cannot be afforded a presumption for diseases associated with herbicide exposure under 38 C.F.R. § 3.307(a)(6) because he did not have service in the Republic of Vietnam or the territorial waters around Vietnam. Further, the evidence does not demonstrate that the Veteran experienced direct exposure to herbicide agents. Regarding service connection for ischemic heart disease and diabetes mellitus type II on a presumptive basis, as the evidence of record fails to show the Veteran's claimed disabilities manifested to a compensable degree within one year of his separation from service, and there is no record of continuity of symptomatology from the Veteran's service, the Veteran is not entitled to service connection on a presumptive basis for either disease (ischemic heart disease or diabetes mellitus type II). 38 C.F.R. §§ 3.307, 3.309. Upon review of the record, the weight of probative evidence is against the claimed in-service injury, event, or disease. Without an in-service incurrence, it is not possible to draw a nexus to the Veteran's current ischemic heart disease and diabetes mellitus type II. As such, the Veteran does not warrant service connection for either ischemic heart disease or diabetes mellitus type II. Shedden, 381 F. 3d 1163. The Board notes that the Veteran has not been afforded examinations regarding the two claimed disabilities (diseases). Here, the Board finds that examinations are not required because there is no evidence of continuity of symptoms or a causative link between ischemic heart disease or diabetes mellitus type II, and an in-service event, injury, or incurrence so as to trigger the duty to provide a VA examination. Bardwell, 24 Vet. App. 36. The Veteran believes that his ischemic heart disease and diabetes mellitus type II were incurred in, aggravated by, or otherwise attributable to, active-duty service. While the Veteran is competent to report discernable symptoms and report etiological opinions of competent clinicians (Jandreau, 492 F. 3d 1372), the evidence of record fails to show that the Veteran has the training or expertise in medicine to render either a current diagnosis or an etiological opinion. 38 C.F.R. § 3.159(a)(1). The Board has considered the Veteran's lay statements and articles submitted. While the articles provide topical information, they do not rise to the level of proof that the Veteran assisted in the return of service members' bodies from Vietnam, exposing him to herbicides. Also, these articles are not specific to the Veteran. Even when contemplated under the evidentiary standards laid out in Lynch, the evidence is not at least in relative equipoise as to whether ischemic heart disease and diabetes mellitus were incurred in, aggravated by, or otherwise attributable to, the Veteran's military service. Therefore, the persuasive weight of probative evidence does not support granting service connection for the above-captioned service-connection claims. 38 U.S.C. § 5107(b). A. J. Spector Veterans Law Judge Board of Veterans' Appeals Council for the Board Edward Lent 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.