Citation Nr: 0802291 Decision Date: 01/22/08 Archive Date: 01/30/08 DOCKET NO. 06-08 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for diabetes mellitus, Type II (DM), claimed as secondary to herbicide exposure 2. Entitlement to service connection for chronic lymphocytic leukemia (CLL), claimed as secondary to herbicide exposure REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran served on active duty from April 1972 to January 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which in pertinent part denied service connection claims for DM and CLL and denied entitlement to nonservice-connected pension benefits. Jurisdiction of the case was later transferred to Portland, Oregon, where the pension claim was granted in a June 2006 decision. Accordingly the pension claim is no longer in appellate status. A hearing was held in September 2007 before the undersigned, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. FINDINGS OF FACT 1. The veteran did not have service in Vietnam, or any overseas service. 2. DM and CLL were initially diagnosed decades after the veteran's discharge from service and there has been no competent or probative evidence presented etiologically linking either condition to service, or to any incident therein to include claimed exposure to herbicides/Agent Orange. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred or aggravated during the veteran's active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (a)(e) (2007). 2. Chronic lymphocytic leukemia was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (a)(e) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to Notify and Assist As required by 38 U.S.C.A. § 5103(a), prior to the initial unfavorable agency of original jurisdiction (AOJ) decision, the claimant must be provided notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). This notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should give us everything you've got pertaining to your claims. In the instant case, the veteran received notification prior to the initial unfavorable agency decision in August 2004. The RO notice letter dated in March 2004 informed the veteran that he could provide evidence to support his claims for service connection or information such as the sources and locations of such evidence, and requested that he provide any evidence in his possession. The notice letter notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. He was advised that it was his responsibility to either send records pertinent to his claims, or to provide a properly executed release so that VA could request the records for him. The veteran was also asked to advise VA if there were any other information or evidence he considered relevant to his claims so that VA could help by getting that evidence. It is the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. The duty to notify the veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. This notice must also include the information pertinent to the relevant disability rating and an effective date for the award of benefits that would be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claims for service connection, but he was not provided with notice of the type of evidence necessary to establish disability ratings or effective dates. As the Board concludes below that the preponderance is against the veteran's claims and no disability ratings or effective dates will be assigned, the matter is moot and there is no prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). VA must also make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claims for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). Service medical records and VA/private treatment records specifically identified and/or submitted by the veteran are on file. The veteran has not identified any additional outstanding evidence that would be pertinent to the claims on appeal. VA must provide a veteran with an examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. In this case, inasmuch as there is a clear absence of complaints, treatment, or diagnosis of the claimed disabilities until decades after the veteran's discharge from service and the medical evidence of record does not establish or even suggest any etiological relationship between the currently claimed disorders and service, no VA examination is required under 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The veteran's September 2007 hearing testimony is of record and at the hearing the veteran and his representative offered additional evidence for the record which was accompanied by a waiver. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Factual Background In October 1990, the veteran submitted an original application for VA compensation benefits, seeking service connection for DM, claimed to have begun in 1973; and CLL, claimed to have begun in 1999. At that time, the veteran indicated that he never served in Vietnam. The DD 214 form verifies that the veteran had no foreign or overseas service and, therefore, no service in Vietnam. The veteran's service medical records are negative for complaints, findings or a diagnosis of either DM or CLL and do not document any exposure to herbicides/Agent Orange. The October 1973 separation examination report showed that clinical evaluation of all systems was entirely normal and that all laboratory testing was negative/normal. The records do reflect that in November 1973, after the aforementioned examination was conducted, but prior to discharge, the veteran was involved in a jeep accident. Later in November 1973, it was noted that the veteran experienced an episode of syncope/blackout spells. A record dated in January 1974 indicates that the veteran experienced syncopal/blackout episodes in November 1972, in early November 1973 resulting in the jeep accident, and again later in November 1973. The January 1974 record stated that there seemed to be nothing characteristic of the syncopal episodes other than hyperventilation being responsible for the first two. VA records dated in 2003 and 2004 show that the veteran's on- going medical problems include DM and CLL, without mention of remission in the case of CLL. There was no mention in those records of a reported history of exposure to herbicides/Agent Orange in service. A VA record dated in July 2005 indicates that CLL was initially diagnosed 5 years previously at Willamette Valley Cancer Center (WVCC). The veteran presented testimony at a travel Board hearing held in September 2007. It was reported that the veteran served stateside in the US Army from 1972 to 1974, at Fort Ord, Camp Roberts and Camp Hunter Leggett in California, as well as at Fort Carson, Colorado. The veteran and his son testified that in early 2000, possibly 2001, the veteran was in a car accident caused by a blackout episode. During the course of receiving subsequent medical treatment, both diabetes and CLL were diagnosed. The veteran testified that he was at Fort Ord in April and May of 1972, then spent 18 months at Fort Carson, during which time he spent 30 days TDY at Camp Hunter Leggett. The veteran indicated that after his jeep accident in service in 1973, he did not recall having any follow-up testing for diabetes. At the hearing before the Board, the veteran presented additional evidence which was accompanied by a waiver. This evidence included private medical records from WVCC which show that CLL was initially diagnosed in February 2000, but that indications of this appeared on testing conducted as early as July 1999. The private medical records reflect that elevated glucose levels were recorded in November 2000 and that a February 2001 record includes a diagnosis of adult onset diabetes, poorly controlled with hypoglycemic agents. Records dated from July 1999 to 2003 reflect that the veteran was being followed for CLL and DM and make no mention of service or of any herbicide or Agent Orange exposure. This evidence also included a December 1980 memorandum from the Department of the Army, Fort Ord, California, pertaining to Agent Orange and Herbicide related records. The memo indicated that the Pest Control Shop at Fort Ord had monthly records dating back to January 1973 relating to all of the herbicides used on the installation, and that reference to 2- 4-5 T and 2-4 D usage is included in these records. Also submitted was a an article obtained from Wikipedia, related to Agent Orange, which explained that Agent Orange was used from 1961 to 1971, and explained that 2-4-5 T was a form of Agent Orange. The article explained that VA recognized that Agent Orange had been used in Korea in the late 1960's and was used domestically by US forces during the same time period. In addition, the record contains a statement presented by the veteran's spouse, dated in September 2007, relating to Hepatitis C, a claim that is not currently pending in appellate status before the Board. Legal Analysis The veteran maintains that he developed DM and CLL, due to exposure to herbicides/Agent Orange while serving stateside, particularly at Fort Ord in 1972. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for DM and leukemia when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The law provides that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, absent affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). With regard to disorders claimed to be attributable to herbicide/Agent Orange exposure, the law provides that for veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending May 7, 1975, service connection may be presumed for certain diseases enumerated by statute and regulations that become manifest within a particular period, if any such period is prescribed. The specified diseases are: chloracne, Hodgkin's disease, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), multiple myeloma, respiratory cancers (cancers of the lung, bronchus, trachea, or larynx). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Additionally, as a result of amendments to 38 C.F.R. § 3.309(e), Type-II diabetes mellitus and chronic lymphocytic leukemia (CLL) were also added to the list of diseases for which presumptive service connection can be established. See 66 Fed. Reg. 23166 (May 8, 2001); 68 Fed. Reg. 59540 (October 16, 2003). Respiratory cancers, specifically enumerated as cancer of the lung, bronchus, larynx, and trachea, Hodgkin's disease, non- Hodgkin's lymphoma, soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), multiple myeloma, CLL, and DM (Type 2) are diseases subject to presumptive service connection under 38 C.F.R. § 3.307(a)(6)(ii), if the disorder became manifest to a degree of 10 percent at any time after service. VA has determined that a positive association does not exist between other nonspecified diseases and herbicide exposure. 72 Fed. Reg. 32,395 - 32,407 (June 12, 2007). VA has also previously determined that there is no positive association between exposure to herbicides including Agent Orange, and any other condition for which it has not specifically determined a presumption of service connection is warranted. 61 Fed. Reg. 41,446 (1996); 59 Fed. Reg. 341-46 (1994). Notwithstanding the foregoing, the veteran may establish service connection based on exposure to Agent Orange with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Brock v. Brown, 10 Vet. App. 155 (1997). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). The Board initially notes that the veteran's argument is primarily based on the theory that he was exposed to herbicide/Agent Orange at stateside installations where he served, particularly Fort Ord. The veteran's representative has argued, in essence, that the veteran was exposed to chemicals that were similar to those that personnel stationed in the Republic of Vietnam were exposed to, and that the claimed conditions are similar to those claimed by Vietnam veterans. The statutory provision specifically covering herbicides is 38 U.S.C.A. § 1116. Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. The presumption of exposure to herbicides is provided to all veterans who served in Vietnam during the Vietnam era. However, in this case, the veteran served in the continental United States only, and therefore he is not entitled to the statutory presumption of exposure to herbicides while in service. 38 U.S.C.A. § 1116(f). Therefore, with regard to his claims for DM and CLL, service connection under the presumptive provisions of 38 C.F.R. §§ 3.307(a)(6) and 3.309(e) is not warranted. Accordingly, the laws and regulations pertaining to presumptive service connection based on exposure to herbicides will not be further discussed. However, the provisions for presumption service set forth under the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) do not preclude a veteran from establishing service connection with proof of actual direct causation, i.e., that his exposure to Agent Orange led to the development of the claimed disability after service. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Service connection for certain diseases, including DM and leukemia may be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In this case, there are no in service findings of complaints, treatment, or diagnosis of DM or CLL. The post- service medical evidence in this case reflects that the earliest signs of CLL were documented in 1999, followed by a diagnosis of CLL in early 2000. The earliest signs of DM were documented in 2000, followed by a diagnosis of DM in early 2001. Accordingly, service connection on a presumptive basis is not warranted under 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Accordingly, in the absence of the applicability of any presumptive provisions, the Board has reviewed the evidence of record to determine if service connection is warranted on a direct basis. Brock, 10 Vet. App. at 160. In order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, elements (2) and (3) are lacking. As set forth above, the veteran's service medical records are entirely negative for complaints, findings or a diagnosis of DM or CLL, nor were these conditions initially manifested or diagnosed by documented evidence until approximately 25 years after the veteran's discharge from service. In addition, the Board notes that the record on appeal contains no probative evidence linking either of the veteran's currently claimed and diagnosed conditions, DM or CLL, to his period of active service or any incident therein, to include his claimed exposure to herbicide agents/Agent Orange. The Board has considered the veteran's (and his son's) oral and written testimony submitted in support of his arguments that he has DM and CLL, that should be service connected. However, these statements are not competent evidence of a diagnosis, nor are they competent evidence of a nexus between the claimed conditions and the veteran's service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). With regard to the specific contention that the veteran sustained exposure to herbicides/Agent Orange while serving at Fort Ord or other military installations in California and Colorado, this allegation is unsubstantiated by any objective or corroborative probative evidence. Concerning this, the Board has specifically considered the 1980 memo issued by the Department of the Army and the information about Agent Orange obtained from Wikipedia. With respect to the memo, which was dated in December 1980, the information contained therein indicates that records were kept dating back to January 1973 detailing herbicide use of Fort Ord. The veteran, according to his own testimony, was stationed at Fort Ord in April and May of 1972, and hence the memo is not applicable to the time that the veteran was stationed there. The memo similarly lacks detail as to the extent and location of use of any herbicides. As to both the memo and Wikipedia article, neither provides medical evidence demonstrating a causal relationship between the veteran's disabilities and exposure to herbicides/Agent Orange. In addition, this evidence does not discuss generic relationships between the claimed disabilities and claimed exposure to herbicides with such a degree of certainty that, under the facts of this case, they are sufficiently probative of a nexus between exposure to herbicides during service and either of the claimed disabilities to warrant a grant of either claim. See Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Moreover, here a determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Court has made clear that a layperson is not competent to provide evidence in matters requiring medical expertise. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). To the extent that the veteran has attested to having chronic/continuous symptomatology since service, the Board has considered the provisions of 38 C.F.R. § 3.303(b). In Savage v. Gober, 10 Vet. App. 488 (1997), it was noted that while the concept of continuity of symptomatology focuses on continuity of symptoms, not treatment, in a merits context, the lack of evidence of treatment may bear upon the credibility of the evidence of continuity. The record here discloses a span of approximately 25 years without any clinical evidence to support any assertion of a continuity of symptomatology. The fact that the contemporaneous records do not provide subjective or objective evidence that supports any recent contention that the veteran experienced continuous symptomatology since service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board decision in a case involving an injury in service, normal medical findings at the time of separation, and the absence of any medical records of a diagnosis or treatment for many years after service, where the Board found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Savage, 10 Vet. App. at 497-98 (holding that, notwithstanding a showing of post-service continuity of symptomatology, medical expertise was required to relate present disability etiologically to post-service symptoms). Thus, the Board finds that the contemporaneous records are entitled to more probative weight than the recollections of the veteran of events which occurred decades previously. Concerning this, a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). With regard to the long evidentiary gap in this case between active service and the earliest documented manifestations of both DM and CLL, the Board notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the veteran had any incident or in service which resulted in chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any objective evidence of DM and CLL until decades after the period of active duty is itself evidence which tends to show that these claimed conditions did not have their onset in service or for many years thereafter. Additionally, the record reflects that the veteran did not report having either DM or CLL to VA for benefits purposes until he filed his original claim in February 2004, approximately 30 years after discharge from service. Cf. Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991) (noting that interest in the outcome of a proceeding may affect the credibility of testimony). In summary, in light of the inapplicability of any statutory and regulatory presumptions, the lack of any manifestations or diagnoses of DM or CLL in service or for decades thereafter, and lacking probative evidence of a link between the veteran's currently diagnosed DM and CLL and his active service, to include any incident therein, the Board finds that service connection for both DM and CLL is not warranted and must be denied. The benefit of the doubt doctrine is not for application where, as here, the weight of the evidence is against the claims. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for diabetes mellitus, Type II (DM), is denied. Entitlement to service connection for chronic lymphocytic leukemia (CLL) is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs