Citation Nr: 18131308
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 14-21 884
DATE:	August 31, 2018
ORDER
Entitlement to service connection for coronary artery disease (CAD) is denied.
Entitlement to service connection for diabetes mellitus, Type II (diabetes) is denied.
Entitlement to service connection for neuropathy of the bilateral upper extremities, to include as secondary to diabetes is denied.
Entitlement to service connection for neuropathy of the bilateral lower extremities, to include as secondary to diabetes is denied.
REMANDED
Entitlement to service connection for a pulmonary disability, to include chronic bronchitis and chronic obstructive pulmonary disease (COPD) is remanded.
Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is remanded.
FINDINGS OF FACT
1. The Veteran is not presumed to have been exposed to Agent Orange during his active military service.
2. The preponderance of the evidence is against a finding that the Veteran’s CAD is related to his active military service.
3. The preponderance of the evidence is against a finding that the Veteran’s diabetes is related to his active military service.
4. The preponderance of the evidence is against a finding that the Veteran’s neuropathy of the bilateral upper extremities is related to his active military service or service connected disability.
5. The preponderance of the evidence is against a finding that the Veteran’s neuropathy of the bilateral lower extremities is related to his active military service or service connected disability.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for CAD have not been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307.
2. The criteria for entitlement to service connection for diabetes have not been met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307.
3. The criteria for entitlement to service connection for neuropathy of the bilateral upper extremities, to include as secondary to diabetes have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.10.
4. The criteria for entitlement to service connection for neuropathy of the bilateral lower extremities, to include as secondary to diabetes have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.10.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board notes that the Veteran separately raised a claim for entitlement to service connection for PTSD during the pendency of this appeal, which was denied in a March 2018 rating decision.  A May 2018 rating decision denied reopening the claim on the basis of new and material evidence.  As the claim for entitlement to service connection for PTSD has been separately adjudicated from the issue of entitlement to service connection for an acquired psychiatric disorder herein, the Board has characterized the issue on appeal to exclude consideration of PTSD.
Service Connection
Entitlement to service connection for CAD, diabetes, and neuropathy of the bilateral upper and lower extremities
Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Certain “chronic diseases” may be presumed to have been incurred in service if they manifest to a degree of 10 percent or more within one year of a Veteran’s separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  This presumption is rebuttable by probative evidence to the contrary.  Id. 
When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b).  To be “shown in service,” the disease identity must be established and the diagnosis must not be subject to legitimate question.  Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b).  There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.  Walker, 708 F.3d at 1336.
A disease associated with exposure to certain herbicide agents, as listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in or aggravated by service under the circumstances outlined in 38 C.F.R. § 3.307 even though there is no evidence of such disease during the period of service.  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 (Vietnam) during the period beginning on January 9, 1962, and ending on May 7, 1975.  38 C.F.R. § 3.307(a)(6).
In order to establish service in Vietnam for the purpose of the presumption of herbicide exposure under 38 C.F.R. § 3.307(a)(6), a service member generally must have set foot on the landmass of Vietnam, or served on a smaller “brown water” vessel navigating its inland waterways.  Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008) (upholding VA’s interpretation of the applicable regulations as requiring that a veteran must actually have been present on the landmass (“foot-on-land”) or inland waters of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure); VAOPGCPREC 27-97 (July 1997) (holding that service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not, in and of itself, qualify as “service” in Vietnam); VAOPGCPREC 7-93 (August 1993) (noting a distinction between larger ocean-going vessels, referred to as “blue water” vessels, and smaller “brown water” vessels that patrolled near shore or along rivers).  Service in offshore waters, in high-altitude airspace above Vietnam, and service in other locations does not constitute service in Vietnam, unless the conditions of such service involved duty or visitation on the landmass or inland waterways of Vietnam.  See Id.; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a).
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 a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.
The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran.
The Veteran claims that he is entitled to service connection for CAD and diabetes on the basis that he was exposed to Agent Orange while serving on the USS Waddell off the coast of Vietnam between August 1968 and June 1970.  He claims that he is entitled to service connection for neuropathy of the bilateral upper and lower extremities as they are secondary to his diabetes.
In this case, the Veteran has not claimed, nor does the evidence reflect, that he was actually present on the landmass of Vietnam.  Next, review of the Veteran’s military personnel records indicate that he served aboard the USS Waddell from May 1968 to December 1970.  According to the Vietnam Era Navy Ship Agent Orange Exposure Development Site history, the USS Waddell’s only brown water service in Vietnam was on the Saigon River during March 1966 and Cua Viet River during March 1967, and a whaleboat and Captain’s GIG was sent to shore while anchored in Da Nang Harbor on December 28, 1971.  (updated July 1, 2018).  In a May 2014 statement, the Veteran also indicated that the USS Waddell came within 5,000 yards of the mouth of the Cua Viet river and submitted a resource stating that the ship did such on September 22, 1967 in order to rescue the navigator/bombardier from a downed jet.  The resource noted that the USS Saint Paul also participated in the rescue and retrieved the pilot of the aircraft.  Neither the USS Waddell or USS Saint Paul show that the event qualified as being in “brown water” for the purposes of herbicide agent exposure in the Vietnam Era Navy Ship Agent Orange Exposure Development Site history.  Accordingly, the evidence of record is against a finding that the Veteran was presumptively exposed to Agent Orange during his active military service.
The Board notes that the Veteran may still be entitled to service connection on a direct or secondary basis; however, the Veteran has not claimed and the evidence of record does not indicate that any of the relevant disabilities are otherwise related to his active duty service.  The Board further notes that although the record does not indicate that the Veteran has been afforded VA examinations regarding the subject disabilities, there is no indication that such disabilities may be associated with an incident or injury during active duty service or to service connected disability.  Therefore, no VA examinations are warranted prior to adjudication herein.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4).
Therefore, the Board finds that entitlement to service connection for CAD, diabetes, neuropathy of the bilateral upper extremities, and/or neuropathy of the bilateral lower extremities is not warranted.
REASONS FOR REMAND
1. Entitlement to service connection for a pulmonary disability, to include chronic bronchitis and chronic obstructive pulmonary disease (COPD) is remanded.
The Veteran was afforded a VA authorized examination in April 2016 regarding his claim for entitlement to service connection for a pulmonary disability.  The examiner indicated that there was no evidence of asbestos exposure related lung disease, and that it was less likely than not that his pulmonary problems were related to his active duty military service.  However, the Veteran indicated in a June 2014 statement that he believed he was also exposed to other irritants including benzene, second-hand cigarette smoke, JP5, oil, paint fumes, burned oil, and soot.  The Board finds that an addendum opinion is necessary to address whether the Veteran’s pulmonary problems are related to any of the aforementioned irritants.  Prior to obtaining the opinion, the AOJ should perform any development applicable to verify the Veteran’s exposure to additional irritants.
2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is remanded.
The Veteran was afforded a VA authorized examination concerning his claim for entitlement to service connection for an acquired psychiatric disorder in October 2017.  The examiner stated that the Veteran’s depressive disorder was likely secondary to his COPD and the limitations it caused him.  Accordingly, the Board finds that the claims of entitlement to service connection for a pulmonary disability and entitlement to service connection for an acquired psychiatric disorder are inextricably intertwined and the issue must also be remanded.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue).
The matter is REMANDED for the following action:
1. The AOJ should perform any applicable development in order to confirm the Veteran’s exposure to the irritants listed in his June 2014 statement, and associate any findings with the claims file.
2. The AOJ should then return the claims file and a copy of this remand to the examiner who conducted the April 2016 examination, if possible, or to another appropriately qualified examiner.  The examiner is to offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed pulmonary condition, to include COPD, is related to his active military service.  The examiner should consider the Veteran’s claimed exposure to irritants listed in his June 2014 statement, considering any confirmation of exposure found by the AOJ.
The examiner should examine the relevant evidence present in the claims file prior to offering any opinion, and should make note of such in the opinion.  A clear rationale must be given for any opinion offered, referencing relevant lay or medical evidence where appropriate.  If the examiner is unable to offer the requested opinion, he or she should provide an explanation as to why the opinion cannot be given.

 
M. H. HAWLEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Ferguson, Associate Counsel 
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