Citation Nr: 1114599 Decision Date: 04/14/11 Archive Date: 04/21/11 DOCKET NO. 08-22 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for Type II Diabetes Mellitus, including as due to exposure to ionizing radiation and/or herbicides. 2. Entitlement to service connection for status post rotator cuff tear of the right shoulder, including as due to exposure to ionizing radiation and/or herbicides. 3. Entitlement to service connection for status post rotator cuff tear of the left shoulder, including as due to exposure to ionizing radiation and/or herbicides. 4. Entitlement to service connection for hepatic encephalopathy, including as due to exposure to ionizing radiation and/or herbicides. 5. Entitlement to service connection for thrombocytopenia, including as due to exposure to ionizing radiation and/or herbicides. 6. Entitlement to service connection for transient ischemic attacks (TIA), including as due to exposure to ionizing radiation and/or herbicides. 7. Entitlement to service connection for fibromyalgia and joint pain, including as due to exposure to ionizing radiation and/or herbicides. 8. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: National Veterans Legal Services Program, Inc. ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The Veteran had active military service from May 1967 to May 1969. This appeal to the Board of Veterans' Appeals (Board) is from August 2006 and June 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In his July 2008 substantive appeal (on VA Form 9), the Veteran requested a hearing before a Veterans Law Judge of the Board at the Board's offices in Washington, DC (Central Office hearing). But in a more recent August 2010 statement, he withdrew this hearing request. See 38 C.F.R. § 20.702(e) (2010). Because it requires further development before being decided, the Board is remanding the claim for service connection for a back disorder to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam era, so there is no presumption of exposure to herbicides in Vietnam. 2. There also is no indication he was ever exposed to herbicides while stationed in Thailand or in any other capacity during his service. 3. He was exposed to ionizing radiation while on active duty, but none of his claimed disabilities (namely, Type II Diabetes Mellitus, status post rotator cuff tears of his shoulders, fibromyalgia and joint pain, hepatic encephalopathy, thrombocytopenia, and TIA) is listed as a "radiogenic disease" or a presumptive disease for radiation-exposed Veterans. 4. A laboratory finding of glucose intolerance is noted in the record, but he has never received a diagnosis of Diabetes Mellitus, either Type I or II. 5. His disabilities due to status post rotator cuff tears of both shoulders were first diagnosed many years after service and have not been linked by competent and credible medical or other evidence to his service, including to his exposure to ionizing radiation. 6. His hepatic encephalopathy and other liver problems were first diagnosed many years after service and have been attributed to a primary diagnosis of alcohol abuse. 7. Thrombocytopenia was first identified many years after service and has not been linked by competent and credible medical or other evidence to his service, including to his exposure to ionizing radiation. 8. His first TIA occurred many years after service and has not been linked by competent and credible medical or other evidence to his service, including to his exposure to ionizing radiation. 9. Fibromyalgia and joint pain were first identified many years after service and have not been linked by competent and credible medical or other evidence to his service, including to his exposure to ionizing radiation. Moreover, he did not have service that would qualify him for consideration of presumptive service connection for these ailments on the basis of undiagnosed illness. CONCLUSIONS OF LAW 1. Type II Diabetes Mellitus was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2010). 2. Status post rotator cuff tear of the right shoulder was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2010). 3. Status post rotator cuff tear of the left shoulder was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2010). 4. Hepatic encephalopathy was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2010). 5. Thrombocytopenia was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2010). 6. A disability involving TIAs was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2010). 7. A disability involving fibromyalgia and/or joint pain was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all elements of a service-connection claim, including the downstream disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The duty to notify has been satisfied in this case by means of letters from the RO to the Veteran in January 2006, July 2006, September 2006, and March 2007, which properly informed him of what evidence was required to substantiate his claims and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. He was also notified of the downstream disability-rating and effective-date elements of his claims in the eventuality that service connection is ultimately granted. See Dingess, supra. The letters were issued prior to the initial adjudication of his claims in August 2006 and June 2007, so in the preferred sequence. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Thus, the duty to notify has been satisfied. And even if there is a notice error in this case, the Veteran, as the pleading party, not VA, has the evidentiary burden of proof of showing how this VCAA notice error in either timing or content is unduly prejudicial, meaning outcome determinative of his claims. See Shinseki v. Sanders, 129 S. Ct. 1626 (2009). He and his representative have not made any such pleading or allegation. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all records that he and his representative identified as potentially relevant. These records include both private and VA treatment records, records from the Social Security Administration (SSA), information regarding his exposure to ionizing radiation while stationed in Greenland, and information showing that he was never exposure to herbicides while stationed in Thailand and that he did not service in Vietnam. The Veteran has not been afforded a VA compensation examination to determine whether his claimed disabilities are related to his military service, as the standards of the Court's decision in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met. These standards provide that a medical examination for a medical nexus opinion is necessary in a service-connection claim 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 a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Id., at 81. See also 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4). Here, though, these standards are not met. First, since the Veteran has not received a diagnosis of Type II Diabetes Mellitus, the first prong of the McLendon test has not been established. The laboratory finding of glucose intolerance is noted in the record, but it did not result in a diagnosis of Type II Diabetes Mellitus or any association of this diagnosis or accompanying symptoms with his military service. Also, his other claimed disabilities were first identified many years after his military service had ended; in other words, there is no evidence of a relevant event, disease or injury during his service, also no evidence that a chronic disease was present within one year of his discharge from service to a compensable degree, and no indication that any of these claimed disabilities is associated with his military service. Therefore, the second and third prongs of the McLendon test have not been met. See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (indicating that, when determining whether a VA examination is required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability). Accordingly, the Board finds that no further development of these claims is necessary to meet the requirements of the VCAA. II. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). In this case, the Veteran is claiming entitlement to service connection for various disabilities as being due to either exposure to ionizing radiation while participating in Project Crested Ice or from exposure to herbicides while stationed in Thailand. This is significant because special provisions are potentially applicable to Veterans who have been exposed to ionizing radiation or herbicides in service. Service connection for a condition claimed as due to radiation exposure can be established in one of three ways: (1) by demonstrating that the condition at issue is one of the types of cancer that are presumptively service connected under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309; (2) by demonstrating direct service connection under 38 C.F.R. § 3.303(d), a task that "includes the difficult burden of tracing causation to a condition or event during service," Combee v. Brown, 34 1039, 1043 (Fed. Cir. 1994); or (3) by demonstrating direct service connection under 38 C.F.R. § 3.303(d), with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is one of the "radiogenic diseases" listed by the Secretary of VA in § 3.311(b). See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). The Board finds that these special presumptive provisions concerning radiation exposure do not apply in this case, however. The record confirms the Veteran was exposed to radiation while participating in an accident response in Thule, Greenland, in 1968, following a plane crash. An April 2006 report from the Department of the Air Force notes that the highest estimated dose for any worker at the Thule site was 11.57 rem, which can be considered an upper bound for the Veteran's dose. So he was clearly exposed to radiation while on active duty. Nevertheless, the first method of establishing service connection for a radiation-exposed Veteran is not available in this case since none of the claimed disabilities (namely, Type II Diabetes Mellitus, status post rotator cuff tears of the shoulders, fibromyalgia and joint pain, hepatic encephalopathy, thrombocytopenia, and TIA) is listed under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309. Similarly, none of these claimed disabilities is listed as a "radiogenic disease" under 38 C.F.R. § 3.311(b); therefore, none of the procedural advantages prescribed in 38 C.F.R. § 3.311 is available to this Veteran. In short, the Board need not further consider this theory that he developed these claimed disabilities as a result of exposure to ionizing radiation, unless there is competent medical evidence verifying this cause-and-effect correlation, i.e., evidence indicating direct service connection, which will be discussed below. See again Combee, supra. The Veteran's other theory is that he developed these claimed conditions as a result of exposure to chemicals, or herbicides, while stationed in Thailand. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed in 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence establishing that he or she was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). For the purpose of this section, "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, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram." If a Veteran was exposed to an herbicidal agent during active military, naval, or air service, certain specified diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). This list of diseases includes: chloracne or other acneform disease consistent with chloracne, Type 2 Diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, soft-tissue sarcoma, ischemic heart disease, Parkinson's disease, and B cell leukemias. See 38 C.F.R. § 3.309(e). See Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). These diseases, however, must have become manifest to a degree of 10 percent or more at any time after service, except that chloracne (or other acneform disease consistent with chloracne) must become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. See 38 C.F.R. § 3.307(a)(6)(ii). VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630-27641 (2003). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following conditions: Hepatobiliary cancers, nasopharyngeal cancer, bone and joint cancer, breast cancer, cancers of the female reproductive system, urinary bladder cancer, renal cancer, testicular cancer, abnormal sperm parameters and infertility, amyotrophic lateral sclerosis (ALS), chronic persistent peripheral neuropathy, lipid and lipoprotein disorders, gastrointestinal and digestive disease, immune system disorders, circulatory disorders, respiratory disorders (other than certain respiratory cancers), skin cancer, cognitive and neuropsychiatric effects, gastrointestinal tract tumors, brain tumors, endometriosis, adverse effects on thyroid homeostasis, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21,258-21260 (May 7, 2009). However, even if these statutory presumptions are inapplicable, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a claimant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). See also Stefl v. Nicholson, 21 Vet. App. 120 (2007). Direct service connection requires: (1) proof of current disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disorder may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, such as diabetes mellitus and arthritis, may be presumed to have been incurred in service if manifest to a compensable degree of at least 10-percent disabling within one year of discharge from service. This presumption, however, is rebuttable by probative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). III. Service Connection for Type II Diabetes Mellitus The Veteran claims that he developed Type II Diabetes Mellitus as a result of having been exposed to herbicides while stationed in Thailand. For the reasons and bases set forth below, however, the Board finds no grounds to grant his claim on either a presumptive or direct-incurrence basis. Service connection for Type II Diabetes Mellitus is not warranted because the Veteran has not satisfied the most fundamental requirement of this claim, which is establishing he has this claimed condition. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof the Veteran has the claimed disability, there can be no valid claim because there is no current disability to attribute to his military service, regardless of the specific basis of the claim). Congress has specifically limited entitlement for service- connected disease or injury to cases where such incidents have resulted in disability. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability generally means a disability shown by competent medical evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). In Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997), it was held that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability. But in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), it was clarified that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim, and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim. Here, though, the record does not indicate the Veteran has ever been diagnosed with Type II Diabetes Mellitus. Indeed, to the contrary, lab reports dated in August 2005 and October 2006 note that his hemoglobin was 5.3 and 6.0, respectively, both of which ultimately were interpreted as "Non-diabetic." Also, a May 2008 treatment report notes a finding of glucose intolerance, but does not indicate this finding was sufficient to warrant a diagnosis of diabetes mellitus. This is significant because similar indications of hyperlipidemia, elevated triglycerides, and elevated cholesterol are merely laboratory results and not, in and of themselves, ratable disabilities for VA compensation purposes. 61 Fed. Reg. 20440, 20445 (May 7, 1996). The same is true for a complaint of pain, which, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). While glucose intolerance can be a sign of diabetes mellitus, such has not been shown in this case. Therefore, in the absence of a current disability involving diabetes mellitus, there is no valid claim. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In reaching this decision, the Board points out that Type II Diabetes Mellitus is not the type of condition that is readily amenable to just lay diagnosis or probative comment on its characteristic symptoms or etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). Rather, as mentioned, a diagnosis of this condition is based on the results of objective data - such as blood pressure monitoring, blood sugar (glucose) level, cholesterol level, family history, etc. So there has to be supporting medical evidence indicating the Veteran has this condition, not merely his personal belief or claim that he does, no matter how sincere. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and Falzone v. Brown, 8 Vet. App. 398, 405 (1995). And even assuming for the sake of argument the Veteran has Type II Diabetes Mellitus, as he is alleging, his claim still would have to be denied because it has not been associated with his military service. While this condition is one of the specific diseases listed in § 3.309(e) as presumptively service connected, this presumption is not absolute, rather, rebuttable, and the simple fact of the matter is that his military personnel records do not show, nor has he even alleged, that he served in the Republic of Vietnam during the Vietnam era. Also, no evidence verifies that he was ever exposed to herbicides elsewhere during his military service, including especially in Thailand. The Board has reviewed his service personnel records, none of which mentions his participation or involvement in testing or handling any kind of herbicide such as the dioxin in Agent Orange. He claims that he was exposed to herbicides while stationed in Thailand from September 1968 to August 1969. In an October 2006 statement, he indicated that he had worked for the 388th Supply Squadron at Korat Air Force Base in Thailand, where he was responsible for inventory. He explained that the inventory included leaky drums containing chemicals, which he was exposed to while walking through puddles and breathing toxic fumes. The Veteran is competent to report what occurred during his service because firsthand knowledge of a factual matter is competent. Washington v. Nicholson, 19 Vet. App. 363 (2005). But his lay statements concerning this also must be credible to ultimately have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). And a June 2008 VA report indicates he was not exposed to any herbicides at his location in Thailand. This report points out that "the DoD [Department of Defense] list shows that extensive testing of herbicides was conducted in Thailand during 1964 and 1965. The only specific location identified is the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand. Korat RTAFB is not on the DoD list and your Veteran's in-country dated of 1968 to1969 are not specified." The report further adds that "tactical herbicides such as Agent Orange were used and stored in Vietnam, not Thailand." Effective February 24, 2011, VA is amending its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea, but not also in Thailand. Specifically, VA is adding a new paragraph (a)(6)(iv) to 38 C.F.R. § 3.307 that reads as follows: (a)(6)(iv) A Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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. A list of units that have been recognized by the Department of Defense (DOD) as having served in areas along the Korean demilitarized zone (DMZ) can be found in the M21-1MR manual (http://vbaw.vba.va.gov/bl/21/M21-1MR/m21-1mr_main.htm) at part IV, subpart ii, chapter 2, § C.10.p. This list is not completely up to date. The 2nd Military Police Company of the 2nd Infantry Division has been recognized by DOD as having served along the DMZ, but it is not currently included in the list in the M21-1MR. The Veterans Benefits Administration (VBA) has informed the Board that it is in the process of revising the manual to add this unit. Additionally, VBA is in the process of updating the manual to extend the dates of potential herbicide exposure along the DMZ from April 1, 1968 to August 31, 1971, in accordance with the final rulemaking. But, again, the Veteran's service was not in Korea along the DMZ, instead in Thailand. And since no evidence confirms he was exposed to an herbicidal agent in any capacity during his service, service connection would not be warranted on a presumptive basis, even if the Board were to assume for the sake of argument that he has Type II Diabetes Mellitus - which, again, the Board emphasizes has never been diagnosed. In conclusion, since the Veteran has not met the essential requirement of a current disability involving Type II Diabetes Mellitus, the preponderance of the evidence is against his claim. And as the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Accordingly, the appeal of this claim must be denied. IV. Service Connection for Status Post Rotator Cuff Tears of the Left and Right Shoulders The Veteran was diagnosed with rotator cuff tears of both shoulders many years after service. But he claims that he developed these shoulder disabilities due to his exposure to ionizing radiation and/or herbicides in service. For the reasons and bases set forth below, however, the Board finds no grounds to grant these claims, either, under any theory of service connection. As already noted, the provisions pertaining to exposure to ionizing radiation do not apply to the Veteran's left and right shoulder disabilities. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309, 3.311. And since the most probative evidence does not confirm that he was ever exposed to herbicides in service, the presumptive provisions concerning exposure to herbicides do not apply. In any event, service connection would not available on a presumptive basis for either shoulder disability as due to herbicide exposure because orthopedic disabilities, such as a rotator cuff tear, are not included in the list of presumptive diseases in 38 C.F.R. § 3.309(e). Therefore, service connection for his left and right shoulder disabilities only may be established with proof of actual direct causation. Stefl, supra. See also McCartt v. West, 12 Vet. App. 164, 167 (1999) (wherein the Court held that the provisions set forth in Combee, which concerned radiation exposure, are nonetheless equally applicable in cases involving claimed Agent Orange exposure). In other words, medical evidence must show the Veteran's left and right shoulder disabilities had their onset in service or, if arthritis is shown, during the one-year period after his separation from service. And mere lay assertions of this purported cause-and-effect relationship do not constitute competent medical evidence with respect to this nexus requirement. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. Unfortunately the evidence does not support the Veteran's claims for service connection for left and right shoulder disabilities by showing that they were incurred in service, or that arthritis was diagnosed within one year of service. Instead, the evidence shows that he developed left and right shoulder disabilities many years after his military service had ended, with no indication that they are related to his service. The STRs show treatment in October 1967 for left shoulder pain after a lifting injury. A physical examination showed full range of motion with no tenderness of the left shoulder. The diagnostic impression was a strain of the left shoulder. No further left shoulder problems were reported during the remainder of his military service. Also, a May 1970 entry shows treatment for right shoulder pain following some kind of injury, the details of which were not recorded. A physical examination revealed tenderness over the right acromion and decreased abduction of the right shoulder. The diagnostic impression was rule out fracture of the right shoulder. X-rays, however, did not show a fracture. This problem also apparently resolved, however. Thus, the Veteran was seen for pain in each shoulder on one occasion in service, which apparently resolved with no chronic shoulder disability diagnosed in service. Of particular relevance, a separation physical performed in October 1970 revealed that both shoulders were normal on clinical evaluation. Also, when contemporaneously completing a medical history questionnaire, the Veteran checked "No" in a box where he could indicate "Painful or 'trick' shoulder or elbow." The Board thus finds that his STRs do not support the notion that he had chronic (meaning permanent) left or right shoulder disability from the injuries he earlier had sustained in service. See Struck v. Brown, 9 Vet. App. 145 (1996). And when chronicity of disease or injury in service is not established, or legitimately questionable, a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). As mentioned, establishing continuity of symptomatology in this circumstance under § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). But there is no such evidence in this particular instance. There also is no evidence of any arthritis in either shoulder joint within one year of the Veteran's separation from service in October 1970, certainly not X-ray confirmed and to the required minimum compensable degree of at least 10-percent disabling. See 38 C.F.R. §§ 3.307, 3.309(a),4.71a, Diagnostic Codes 5003, 5200, 5201, etc. Instead, the evidence shows that his left and right shoulder disabilities are related to injuries he sustained many years after service, so intercurrent factors. With respect to his right shoulder, the evidence shows that he injured this shoulder at work in July 2002 while using a saw, for which he filed a worker's compensation claim. He underwent an initial right rotator cuff repair in September 2002, and a second repair in June 2004 after reinjuring this shoulder. Radiographs revealed degenerative changes in the right shoulder joint. With respect to his left shoulder, treatment records show he began receiving treatment for left shoulder pain in 2006, which was eventually diagnosed as bursitis and degenerative changes of this shoulder. But there was no association of this disability with his military service, including especially to the injury he had earlier sustained in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Thus, the evidence shows the Veteran's current right and left shoulder disabilities had their onset over thirty years after his military service had ended in October 1970. This is probative evidence against these claims. See Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). There also, as explained, is no supporting medical nexus evidence attributing either shoulder disability to his military service, including to his exposure to ionizing radiation during service. See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Indeed, even the Veteran himself has not reported experiencing continuous symptoms, such as bilateral shoulder pain, since his relatively brief treatment during service for shoulder pain following the injuries mentioned. So service connection under § 3.303(b) based on continuity of symptomatology since service is not warranted because even he seemingly acknowledges this has not occurred. See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (wherein the Federal Circuit Court recognized lay evidence as potentially competent to support presence of disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records, but equally acknowledging the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). So, in conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for right and left shoulder disabilities. As such, the benefit of the doubt doctrine is not for application, , and the appeal of these claims must be denied. See Gilbert, 1 Vet. App. at 55; Ortiz, 274 F. 3d at 1361. V. Service Connection for Hepatic Encephalopathy This is a claimed liver condition. Hepatic encephalopathy is liver failure that often leads to confusion, an altered level of consciousness, and coma. After reviewing the evidence of record, the Board finds no basis to grant this claim. The Veteran's theory in support of this claim is that he developed liver problems as a result of his exposure to ionizing radiation in service. As noted, however, the provisions pertaining to exposure to ionizing radiation do not apply to hepatic encephalopathy. See 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309, 3.311. The provisions pertaining to exposure to herbicides are also inapplicable since exposure to such chemicals has not been shown and since this disability is not included in the list of presumptive diseases pertaining to herbicide exposure. See 38 C.F.R. § 3.307(a)(6)(iii). Therefore, service connection for hepatic encephalopathy is not warranted on a presumptive basis and can only be established by showing that it was incurred in or aggravated by service. See Combee, 34 F.3d at 1039. Unfortunately, no such evidence has been submitted to warrant service connection on a direct-incurrence basis. The evidence instead shows the Veteran developed hepatic encephalopathy many years after his military service had ended, and secondary to alcoholism rather exposure to ionizing radiation. He was admitted to the Orlando Regional Healthcare System in June 2005 for mental status changes and evidence of alcoholic hepatitis. It was noted that he drank about a liter of vodka a day. Diagnostic testing and evaluation revealed that he was suffering from hepatic encephalopathy, alcoholic hepatitis, and cirrhosis, all secondary to alcohol abuse. In other words, all of his liver problems, including hepatic encephalopathy, have been attributed to his alcohol abuse. Under these circumstances, service connection for hepatic encephalopathy is precluded. Disability resulting from alcohol abuse, since it is willful misconduct, generally cannot be service connected. See 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.303(c)(3) and (d). VA's General Counsel has confirmed that direct service connection for disability that is a result of a claimant's abuse of alcohol or drugs is precluded for purposes of all VA benefits for a claim, as here, filed after October 31, 1990. See VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). There is just a very limited exception to this general rule. In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the Federal Circuit Court held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id., at 1376. However, the Federal Circuit Court further held that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. But in further clarifying this, the Federal Circuit Court explained that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id., at 1381. An award of compensation on such a basis would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Here, there is no such evidence. The Board thus concludes that service connection for hepatic encephalopathy is precluded because the preponderance of the evidence is unfavorable to this claim, so no applicability of the benefit-of-the-doubt doctrine. 38 C.F.R. § 3.102 VI. Service Connection for Thrombocytopenia Thrombocytopenia is defined "as a disorder which may stem from failure of platelet production, splenic sequestration of platelets, increased platelet destruction or utilization, or dilution of platelets." Combee v. Principi, 4 Vet. App. 78, 81 (1993). After carefully reviewing the evidence of record, however, the Board finds no basis to grant this claim. Thrombocytopenia is not listed as a presumptive disease under the provisions pertaining to exposure to ionizing radiation. See 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309, 3.311. Nor is it included in the list of presumptive disease pertaining to herbicide exposure. 38 C.F.R. § 3.309(e). In addition, no evidence indicates this condition is otherwise related to the Veteran's military service, thereby precluding service connection under a direct-incurrence theory. See Stefl and Combee v. Brown, both supra. The Veteran's STRs make no reference to thrombocytopenia, including a laboratory finding showing an abnormally low number of platelets in his blood. In the absence of a diagnosis, or a laboratory finding suggestive of thrombocytopenia, the STRs provide compelling evidence against this claim. See Struck, 9 Vet. App. at 145. The record instead shows that thrombocytopenia was first identified during VA treatment in February 2006, some 36 years after the Veteran's separation from active duty in 1970, so also probative evidence against this claim. See Maxson, 230 F.3d at 1330. But of equal or even greater significance, no medical evidence attributes this disorder to his military service, including to his exposure to ionizing radiation during service. See Watson, 4 Vet. App. at 314; Maggitt, 202 F.3d at 1375; D'Amico, 209 F.3d at 1326; Hibbard, 13 Vet. App. at 548; and Collaro, 136 F.3d at 1308. This is not the type of condition that he, himself, may link to his military service without supporting medical evidence. 38 C.F.R. § 3.159(a)(1) and (2). Accordingly, the preponderance of the evidence is against this claim, meaning no reasonable doubt to resolve in his favor, and that this claim resultantly must be denied. 38 C.F.R. § 3.102. VII. Service Connection for TIAs The Board finds no basis to grant this claim, either, because the evidence shows the Veteran's first TIA occurred many years after his military service had ended, with no association or attribution to his military service. TIA is not listed as a presumptive disease under the provisions pertaining to exposure to ionizing radiation, see 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309, 3.311, nor is it included in the list of presumptive disease pertaining to herbicidal exposure, see 38 C.F.R. § 3.309(e). Also, no evidence shows this condition is otherwise related to the Veteran's military service, including to his exposure to ionizing radiation, thereby precluding service connection under a direct-incurrence theory. There is no evidence in the STRs suggesting the Veteran experienced a TIA while on active duty. See Struck, 9 Vet. App. at 145. Instead, the record shows that a TIA was first diagnosed in an October 2006 private treatment report, approximately 36 years after his military service had ended. See Maxson, 230 F.3d at 1330. Moreover, this report does not indicate this condition is in any way related to his military service, including to his confirmed exposure to ionizing radiation. Simply stated, no competent medical evidence indicates any disability due to TIA is related to his military service, including to his exposure to ionizing radiation in service. See Watson, 4 Vet. App. at 314; Maggitt, 202 F.3d at 1375; D'Amico, 209 F.3d at 1326; Hibbard, 13 Vet. App. at 548; and Collaro, 136 F.3d at 1308. This claim also resultantly must be denied since the preponderance of the evidence is unfavorable, so no reasonable doubt. See Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494-95. VIII. Service Connection for Fibromyalgia and Joint Pain The Veteran's complaints of fibromyalgia and joint pain refer to throughout his body. See Dorland's Illustrated Medical Dictionary 697 (30th ed. 2003) (defining fibromyalgia as "pain and stiffness in the muscles and joints that is either diffuse or has multiple trigger points."). In adjudicating this claim, however, the Board will not consider his shoulders since his claims concerning his shoulders and associated pain already have been adjudicated earlier in this decision. The Board also will not consider his back since the claim for service connection for a back disorder is being remanded for additional evidentiary development. With respect to his remaining joints and muscles, however, the Board finds no basis to grant this claim. Other than his back and shoulders, the Veteran's STRs make no reference to problems concerning any other joint or muscle, either in the way of a subjective complaint or objective clinical finding such as a diagnosis. See Struck, 9 Vet. App. at 145. In fact, the first evidence of joint and/or muscle pain other than in the back and shoulders is an August 2007 VA treatment record listing diagnoses of fibromyalgia and possible osteoporosis, after the Veteran reported experiencing aches and pains throughout his body. However, this report - as well as subsequent reports also listing these diagnoses - does not relate his fibromyalgia or joint pain to his military service, including to his exposure to ionizing radiation in service. Thus, the medical evidence does not support the Veteran's claim for service connection for fibromyalgia and joint pain since these problems were first documented over 35 years after his military service had ended, with no supporting medical evidence of a nexus or linkage to his service. See Maxson, 230 F.3d at 1330; Watson, 4 Vet. App. at 314; Maggitt, 202 F.3d at 1375; D'Amico, 209 F.3d at 1326; Hibbard, 13 Vet. App. at 548; and Collaro, 136 F.3d at 1308. In his substantive appeal (on VA Form 9), the Veteran concedes that all disabilities at issue did not start until years after his military service had ended, but that they nonetheless are all related to his in-service exposure to ionizing radiation. Because, however, the type of conditions he is claiming entitlement to service connection for are not readily amenable to lay diagnosis or probative comment on etiology, there has to be supporting medical nexus evidence, which there simply is not. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117, 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). But the Veteran's claim for fibromyalgia and joint pain is not predicated on undiagnosed illness, particularly since he served in the military from 1967 to 1969, so well before Operation Desert Shield/Desert Storm from which these types of claims originated. Therefore, in conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for fibromyalgia and joint pain. As such, the benefit of the doubt doctrine is inapplicable, and the appeal of these claims must be denied. See Gilbert, 1 Vet. App. at 55; Ortiz, 274 F. 3d at 1361,. ORDER Service connection for Type II Diabetes Mellitus, including as due to exposure to ionizing radiation and/or herbicides, is denied. Service connection for status post rotator cuff tear of the right shoulder, including as due to exposure to ionizing radiation and/or herbicides, is denied. Service connection for status post rotator cuff tear of the left shoulder, including as due to exposure to ionizing radiation and/or herbicides, is denied. Service connection for hepatic encephalopathy, including as due to exposure to ionizing radiation and/or herbicides, is denied. Service connection for thrombocytopenia, including as due to exposure to ionizing radiation and/or herbicides, is denied. Service connection for TIAs, including as due to exposure to ionizing radiation and/or herbicides, is denied. Service connection for fibromyalgia and joint pain, including as due to exposure to ionizing radiation and/or herbicides, is denied. REMAND The Board has denied the Veteran's claim for service connection for fibromyalgia and joint pain. But since evidence shows the Veteran has a current back disability, and that he was treated for back problems on several occasions in service, the Board finds that additional evidentiary development is needed before it can adjudicate his claim for service connection for a back disability. The Veteran's military entrance examination report does not indicate he had experienced any back-related problems by the time he entered service in May 1967. Therefore, it must be presumed that he entered service in sound condition with no preexisting back disability. 38 U.S.C.A. §§ 1111, 1132, 1137. Under these circumstances, the burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that his disability was both preexisting and not aggravated by his service. See VAOPGCPREC 3-2003 (July 16, 2003) and Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Evidence in the STRs suggest the Veteran may have had a back disability prior to service. Specifically, entries dated in June 1967, so the month after he began serving on active duty, show treatment for back pain, and one record notes a two-year history of back pain - thus, if indeed true, predating his service. Another record similarly notes that he had sustained a severe low back injury in December 1966, so again before service, when he was struck with a club by a teacher. These entries therefore suggest he may have had a back disability prior to service. Other STRs dated in 1967 and 1968 additionally note that he had experienced back pain following an attack of polio at the age of 7 or 8, as well as low back pain following a motor vehicle accident at age 14 or so. However, he stated the back pain was never much of a problem prior to service. During one visit, he reported then recent low back pain following a football game just 10 days prior. A physical examination revealed pain in the lower dorsal area on palpation. X-rays of the low thoracic and lumbar spine were negative. The diagnostic impression was soft-tissue injury. However, X-rays performed in June 1967, again, the month following his entrance into service, had revealed evidence of spina bifida occulta. Evidence developed after service shows the Veteran went many years without any documented back problems. The record shows he reinjured his back at work in March 1994. Subsequent treatment records note his complaints of chronic low back pain, with only minimal objective findings on examination. X-rays performed in April 1994 note some spina bifida occulta at S1 and spur formation at L2, whereas X-rays performed in April 2006 note degenerative changes of all vertebra of the lumbar spine. In light of this conflicting evidence, the Board finds that a VA examination and medical nexus opinion are needed to determine whether clear and unmistakable evidence establishes the Veteran had a preexisting back disability and, if so, whether clear and unmistakable evidence also shows it did not chronically worsen during or as a result of his service beyond its natural progression. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4). Also, with respect to any spina bifida occulta, there has to be determination of whether this is a congenital or developmental defect versus disease. Generally speaking, a congenital defect is not considered a disease or injury for VA compensation purposes and, thus, not service connectable as a matter of express VA regulation. 38 C.F.R. §§ 3.303(c), 4.9 (2009). The only possible exception is if there is evidence of additional disability due to aggravation during service of the congenital disease, but not defect, by superimposed disease or injury. See VAOPGCPREC 82-90; Quirin v. Shinseki, 22 Vet. App. 390 (2009); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. See also Winn v. Brown, 8 Vet. App. 510, 516 (1996). In VAOPGCPREC 82-90, VA's General Counsel held that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin, and indicated that support for this position could be found in VA regulations themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities. Accordingly, this remaining claim is REMANDED for the following additional development and consideration: 1. Schedule an appropriate VA compensation examination for a medical nexus opinion concerning the nature and etiology of any current back disability. Essential to this determination is giving the designated examiner an opportunity to review the claims file, including especially a complete copy of this remand, for the pertinent medical and other history. All necessary diagnostic testing and evaluation should be performed and all clinical findings reported in detail. The examiner is specifically requested to respond to the following: a) Identify all disabilities currently affecting the Veteran's back (i.e., what are the present diagnoses). b) If the examiner identifies any congenital or developmental condition, such as spina bifida occulta, specify whether it is a defect versus disease and, if a disease, whether any other disability exists that is superimposed. c) For any back disability indentified, the examiner should comment on whether it clearly and unmistakably existed prior to the Veteran's military service (meaning prior to May 1967), and, if so, whether there also is clear and unmistakable evidence indicating it was not aggravated during or by his service (which lasted until May 1969) beyond its natural progression. d) If, instead, it is determined the Veteran did not clearly and unmistakably have pre-existing back disability, then an opinion is needed concerning the likelihood (very likely, as likely as not, or unlikely) that any current back disability is related to his military service or dates back to his service, when considering the relevant complaints, evaluation and treatment during his service. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. And the examiner is asked to make every effort to provide a response to these determinative issues. 2. Then readjudicate this remaining claim in light of the additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim. The Veteran has the right to submit additional evidence and argument concerning the claim the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs