Citation Nr: 0930880 Decision Date: 08/18/09 Archive Date: 08/27/09 DOCKET NO. 08-15 197 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a vascular disorder, including thrombophlebitis of the left leg, to include as a result of exposure to herbicides. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to a vascular disorder and as a result of exposure to herbicides. 3. Entitlement to service connection for a skin condition, to include as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1996 to December 1970. He is currently in receipt of a permanent and total rating for nonservice-connected pension purposes primarily due to disabilities which are unrelated to those for which service connection is claimed herein. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a March 2007 rating decision in which the RO denied service connection for a vascular disorder, including thrombophlebitis of the left leg; peripheral neuropathy of the lower extremities; and a skin condition. The Veteran alleges that all of the claimed disabilities were caused by his exposure to Agent Orange that leached into the air from contaminated aircraft parts at the former McCoy Air Force Base in Orlando, Florida. The Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in June 2009; a copy of the transcript is in the record. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam Era; rather, all of the Veteran's service was took place within the continental United States. Service department records show no evidence that the Veteran was ever exposed to herbicides, including Agent Orange, during active duty. 2. There is no competent evidence that any claimed vascular disorder, including a history of thrombophlebitis of the left leg, is related to his service or to claimed exposure to herbicides during his service. The Veteran's thrombophlebitis was first shown more than 10 years after his discharge from military service. 3. The evidence does not show that the Veteran currently has peripheral neuropathy of the lower extremities. However, to the extent that this disability exists, there is neither any competent evidence that this condition was present during, or within a year of, the Veteran's service, nor that it is otherwise related to his service, including claimed exposure to herbicides during service. As service connection for a vascular disorder has not been established, there is no legal basis for a grant of service connection for peripheral neuropathy of the lower extremities, as secondary to a vascular disorder. 4. The evidence does not show that the Veteran currently has a skin disability that is related to his military service, including claimed exposure to herbicides during his service. CONCLUSIONS OF LAW 1. A vascular disorder, including a history of thrombophlebitis of the left leg, was not present in service and is not shown to have been caused by a disease or injury in service, including claimed exposure to herbicides, nor may it be presumed to have occurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2008). 2. Claimed peripheral neuropathy of the lower extremities was not present in, or otherwise related to, his service, including claimed exposure to herbicides, nor may this disorder be presumed to have been occurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2008). 3. The claim for service connection for peripheral neuropathy of the lower extremities, as secondary to a vascular disorder, is without legal merit. 38 C.F.R. § 3.310 (2008). 4. The Veteran was not shown to have a skin disorder that was present in, or otherwise related to, his service, including claimed exposure to herbicides. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. § 3.102, 3.156(a), 3.159, and 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). The third sentence of 38 C.F.R. § 3.159(b) (1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Here, the above cited notice requirements were satisfied by a November 2006 pre-rating letter sent to the Veteran by VA's Orlando Mini Service Center. In this letter, VA informed the Veteran of its duty to assist him in substantiating his claims under the VCAA and the effect of this duty upon his claims, as well as what information and evidence must be submitted by the Veteran. The Veteran was also provided information concerning what he needed to show in order to establish service connection for his claimed disabilities and about how VA determines disability ratings and effective dates. In addition to fulfilling its duty to notify claimants, VA also must make reasonable efforts to assist them in obtaining evidence necessary to substantiate their claims, unless no reasonable possibility exists that such assistance would aid in substantiating such claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has associated with the record the Veteran's service treatment records, private and VA medical records, Social Security Administration (SSA) records, a transcript of the June 2009 hearing, transcripts of hearing testimony presented in connection with several prior claims made by the Veteran, and written statements made by the Veteran and his representative, on his behalf. The Veteran has not indicated that any additional treatment records exist that are relevant to his claims. The Veteran was not afforded a VA examination with respect to his claims. In this regard, the Board notes that VA is required to provide a medical examination or medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5107A (d). An examination is considered necessary if the record contains competent evidence that (a) the Veteran has a current disability or persistent or recurrent symptoms of a disability; (b) the disability or symptoms may be associated with the Veteran's service; and (c) the record does not contain sufficient medical evidence for VA to make a decision on the claim. Id. In this case VA was not required to provide an examination because the record does not contain any competent evidence that any of the Veteran's claimed disabilities are in any way associated with his military service and the Veteran is not presently service connected for any disabilities upon which to premise a claim for secondary service connection. For the above discussed reasons, VA find that the requirements of the VCAA were met. II. Service Connection Generally, the Veteran alleges that, while he was stationed at McCoy Air Force Base near Orlando, Florida, he was exposed to herbicides from contaminated aircraft on the flight line. The Veteran maintains that these aircraft, including KC-135 refueling aircraft and B-52 bombers, were sometimes used to transport herbicides to Vietnam and/or Southeast Asia. The Veteran alleges that Agent Orange may have contaminated these planes and "aerosoled" when exposed to the Florida heat and petrochemical fumes on the flight line. He claims that this contaminated the air on the entire flight line, causing all flight line personnel to have been exposed to herbicides. Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge if the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis where a disability is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Additionally, any increase in severity of a non-service connected disease or injury that is proximately due to, or the result of, a service connected disability, will be service connected. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish a right to compensation for a present disability a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A veteran who, during active military, naval, or air 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 the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). If so, the veteran is thereby entitled to a presumption of service connection for certain disorders listed under 39 C.F.R. § 3.309(e). These diseases are chloracne; type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy (defined as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset); porphyria cutanea tarda; prostate cancer; respiratory cancers; AL amyloidosis, and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 57,586-57,589 (1996); 72 Fed. Reg. 32,345-32,407 (June 12, 2007). Thrombophlebitis and peripheral neuropathy are not listed among the presumptive diseases for which service connection may be granted on the basis of exposure to herbicides under 38 C.F.R. § 3.309(e). Therefore, service connection may not be granted for either on the basis of the presumptive regulatory provisions just discussed. Notwithstanding the foregoing, a Veteran is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Also, in addition to those presumptions associated with Vietnam Era service, other unrelated regulatory presumptions provide that certain chronic diseases, including neuropathy may be presumed to have been incurred during service merely if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). A. Vascular Disorder, to Include Thrombophlebitis of the Left Leg The Veteran claims that he has a vascular disorder that was caused by his service, specifically by exposure to Agent Orange. The evidence shows that the Veteran's service took place entirely within the continental United States and the Veteran does not claim that he was ever stationed in Vietnam. Rather, after basic training the Veteran was stationed at McCoy Air Force Base in Florida. Therefore, the presumption of exposure to herbicides applicable to Veterans who served in Vietnam during the Vietnam War does not apply in this case. Nor does the evidence show that the Veteran was otherwise exposed to any type of herbicide agent while he was in the service. His DD-214 lists his military occupational specialty (MOS) as administrative specialist, analogous to the civilian occupation of clerk-typist. At his June 2009 hearing, the Veteran acknowledged that he never observed a spill or an open container of a herbicide and that he did not work directly with aircraft maintenance. Rather, per his own testimony, he was responsible for completing and processing forms. Thus, even assuming that aircraft at McCoy Air Force Base were contaminated with herbicides, the Veteran's job duties did not cause him to come into direct contact with these aircraft. In any event, there is no competent evidence either that these aircraft were, in fact, contaminated, or that such alleged contamination somehow polluted the air on the flight line. Notably, the Veteran did not personally witness any such contamination occur and did not know what specific missions the aircraft performed. Rather, his hearing testimony indicates that he simply concluded that, based on the type of aircraft serviced at McCoy Air Force Base, some of them must have been used in operations involving Agent Orange and that this must have caused them to become contaminated and to remain so contaminated after returning to the United States. The Veteran then claimed that he did unspecified research indicating that Agent Orange "aerosols at 85 degrees" and that its effects were intensified by petroleum fumes. There is no indication that the Veteran possesses any specialized scientific or technical expertise rendering him competent to provide an expert opinion concerning the chemical properties of Agent Orange, including whether transporting herbicides would necessarily cause an aircraft to become contaminated, how long such contamination would last, the conditions under which a herbicide on a solid surface would become airborne, the effects of other chemicals on the herbicide, or how far it was capable of dispersing once airborne. Given the above facts, there is no basis to conclude that just because the Veteran worked at or near a flight line that serviced aircraft that may have flown in Vietnam he was at least as likely as not exposed to a herbicide. Notably, in this regard, in an August 2007 response to an inquiry from VA, the service department responded that there was no record that this Veteran was ever exposed to herbicides. The Board notes that the Veteran argued that since a VA Medical Center (VAMC) "Outpatient Routing Slip" indicated that the Veteran was exposed to Agent Orange this proves that such exposure actually occurred. The Board observes that this paper was not generated by the Veteran's service department, which is the entity that would have records showing whether the Veteran was exposed to herbicides. VAMCs do not independently determine whether a Veteran was exposed to a herbicide nor do they have the information necessary to do so. Furthermore, this routing slip was generated after the Veteran told VAMC personnel that he was exposed to Agent Orange. Thus, it reflects only the fact that the Veteran reported Agent Orange exposure. Contrary to the Veteran's assertions, it is not evidence that the Veteran was actually exposed to any type of herbicide. Insofar as the Veteran was not shown to have been exposed to herbicides during his service, there is no evidence that such exposure caused the Veteran to develop any type of vascular disease. Furthermore, vascular disease, including thrombophlebitis, is not one of the disabilities listed in 38 C.F.R. § 3.309(e). Therefore, even if the Veteran was exposed to a herbicide agent during his service, service connection could not be granted absent medical evidence showing the existence of a nexus between this disability and such exposure. The Veteran's belief that his disability was caused by exposure to Agent Orange is not sufficient evidence of a nexus; he lacks the specialized training and credentials to offer an opinion as to the etiology of a medical disorder. See, e.g. Wallin v. West, 11 Vet. App. 509, 514 (1998). See also, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Likewise, there is no evidence that the Veteran's vascular disorder was either present during his service or that it was caused by any disease or injury that occurred during his service. The Veteran's service treatment records do not show any complaints of, or treatment for, thrombophlebitis or any other vascular disorder. The report of the Veteran's separation physical in November 1970 does not reflect that the Veteran then had any vascular problems or history of abnormal blood clotting. While both VA and private treatment records show that the Veteran has a long history of recurrent thrombophlebitis for which he is currently treated with anticoagulant medications, this disability was first noted in or about the mid-1980's. The Veteran was treated for pulmonary emboli from October to November 1984, and his vascular problems appear to date from approximately that time. This was more than 13 years after the Veteran's discharge from service. B. Bilateral Peripheral Neuropathy The Veteran claims that he has peripheral neuropathy that was either directly caused by his military service, including exposure to a herbicide agent in service, or alternatively that it is secondary to his vascular disorder. At the outset, the Veteran's treatment records do not show that he is currently diagnosed with, or treated for, peripheral neuropathy, although a note indicates that the Veteran had a history of this disorder. It is unclear whether this notation is simply based on the report of the Veteran. However, even assuming the Veteran currently has peripheral neuropathy, this disorder is not shown to be related to the Veteran's military service. The Veteran's service treatment records do not show any complaints of, or treatment for, peripheral neuropathy, nor is there any credible evidence that this disability developed within one year of the Veteran's discharge from the service. While the Veteran submitted a statement in which he claimed that he had peripheral neuropathy of the lower extremities since 1970, VA medical records indicate that the Veteran told a VA health care provider that he experienced symptoms of peripheral neuropathy around 2003, which is more than 30 years after his service. Assuming that the Veteran currently has peripheral neuropathy, this disorder was not shown until many years after his service. For example, a VA hospital admission form dated in March 1975 reflects that a comprehensive physical was then performed, and there was no mention of peripheral neuropathy. The Veteran was examined by the SSA in 1984 and, at that time, the only physical disability that was noted was status post possible pulmonary embolus. A letter dated in February 1991 from the Veteran's private physician provided in support of one of the Veteran's disability claims, references the Veteran's thrombophlebitis and possible degenerative arthritis but did not mention any peripheral neuropathy. The Veteran was also examined multiple times by VA with respect to his claims for nonservice-connected pension benefits, including in 1995 and 2000, and he was not diagnosed with peripheral neuropathy during either of those examinations. While there is a February 1992 letter from a private doctor that indicates that the Veteran then complained of pain and numbness in the legs, there is no indication that this physician diagnosed peripheral neuropathy, and, in any event, he related the Veteran's symptoms to a car accident that occurred in 1983. Also, to the extent that the Veteran has peripheral neuropathy of the lower extremities, there is no competent evidence that this condition was caused by exposure to herbicides. As previously discussed, the evidence does not show that the Veteran was ever exposed to a herbicide agent while he was in the service. Moreover, the only types of neuropathy associated with exposure to herbicide agents per 38 C.F.R. 3.309(e) are acute and subacute peripheral neuropathy. To the extent the Veteran currently has peripheral neuropathy, it would not meet the definition of either acute or subacute peripheral neuropathy insofar because, per 38 C.F.R. § 3.309(e) note 2, these conditions appear within weeks or months of exposure to an herbicide agent and resolve within two years of onset. The Veteran was discharged from military service more than 35 years before filing this claim so any current neuropathic symptoms do not fall into the above regulatory definition. The Veteran has not submitted any competent evidence that he has peripheral neuropathy due to claimed herbicide exposure. As previously noted, while this may be the Veteran's opinion, he is not competent to diagnose, or provide expert testimony regarding the etiology of, any medical disorder. See, e.g. Espiritu, 2 Vet. App. at 494-495. Finally, in view of the Board's decision denying service connection for a vascular disorder, as noted above, there is no legal basis for granting service connection for peripheral neuropathy as secondary to a vascular disorder. Where, as here, service connection for the primary disability has been denied, the Veteran cannot establish entitlement to service connection, pursuant to 38 C.F.R. § 3.310(a), for a secondary condition. Under these circumstances, the Board must deny the claim for secondary service connection for peripheral neuropathy as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). C. Skin Disorder The Veteran claims that he has a skin disorder that is due to exposure to herbicides while in service. At his hearing in June 2009, the Veteran testified that he was diagnosed with skin cancer. This is not reflected in the Veteran's treatment records, although there is some mention of complaints by the Veteran of skin rashes and a visible skin rash on the Veteran's arms was noted by a medical practitioner in 2003. To the extent that the Veteran has skin cancer or any other disability of the skin, there is no evidence that this disorder began in, or was caused, by the Veteran's service. With respect to his claim that his skin condition is due to exposure to Agent Orange, as noted above, there is no evidence that this Veteran was exposed to Agent Orange during his service. Additionally, neither skin cancer nor any other skin disability other than chloracne is associated with herbicide exposure per 38 C.F.R. § 3.309(e). There is no evidence that the Veteran was diagnosed with chloracne, and he has not submitted any evidence, other than his own opinion, linking his skin disability to herbicide exposure. As previously noted, the Veteran is not competent to provide expert testimony regarding the etiology of a medical disorder. See, e.g. Espiritu, 2 Vet. App. at 494-495. The Veteran's service treatment records do not show treatment for a chronic skin disorder. His skin was noted to be normal at his separation examination in November 1970. The Veteran told a VA medical professional that his skin problems began in 2003, over 30 years after his service. At his hearing in June 2009, the Veteran admitted the onset of his skin disorder was not until he was 53 years old. Insofar as the Veteran was discharged from the military at age 20, this was not until approximately 33 years after his service discharge. There is no evidence the Veteran's skin disorder was present in service or was caused or aggravated by his service. There is no evidence suggestive of a link between any skin disorder and the Veteran's military service. In addition to the medical evidence, in adjudicating these claims, the Board has considered the assertions of the Veteran and his representative; however, none of this evidence provides a basis for allowance of the claims. As indicated above, the claims turn on the medical matters of current disability (a medical diagnosis) and whether there exists a relationship between any current disability and service (a medical nexus), matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on a medical matter. See, e.g., 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"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the Veteran's claims for service connection for a vascular disorder, to include thrombophlebitis, peripheral neuropathy and a skin disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a vascular disorder, including thrombophlebitis of the left leg, to include as a result of exposure to herbicides, is denied. Service connection for peripheral neuropathy of the lower extremities, to include as secondary to a vascular disorder and as a result of exposure to herbicides, is denied. Service connection for a skin condition, to include as a result of exposure to herbicides, is denied. ____________________________________________ M. R. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs