Citation Nr: 1304036 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 07-20 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for residuals of manganese poisoning. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active service in the United States Navy from December 1996 to December 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In August 2007, the Veteran testified at a Travel Board hearing at the RO before the undersigned. In February 2009 and September 2010, the Board remanded the above stated issue for further development. That development having been achieved, the issue now returns for appellate review. FINDING OF FACT The competent and credible evidence demonstrates that the Veteran has residuals of manganese toxicity exposure that occurred during his active duty service. CONCLUSION OF LAW Residuals of manganese poisoning, to include chronic fatigue which includes symptoms such as fatigue, tremors, and myalgias, was incurred during active duty service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision herein to grant service connection for residuals of manganese poisoning, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008)) and the implementing regulations. Regardless, the Veteran was provided proper notice by a letter dated in May 2006, his relevant service and post-service treatment records have been obtained, and he was afforded several VA examinations. Thus, the duties to notify and assist were satisfied. The Veteran seeks service connection for manganese poisoning that is the result of overexposure to manganese from welding fumes and dust while serving on active duty. Manganese poisoning, is defined as poisoning by manganese, usually caused by inhalation of manganese dust. The Veteran's DD Form 214 lists his military occupational specialty as aeronautical welder, an occupation which would expose the Veteran to welding fumes. Symptoms include neurotoxicity with a syndrome resembling paralysis agitans and inflammation throughout the respiratory system. See Dorland's Illustrated Medical Dictionary 1473 (30th ed. 2003). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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) (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection is generally warranted only if there is competent evidence of a causal relationship between any present disability and service. 38 C.F.R. § 3.303(d); See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004. The Board acknowledges that lay evidence may be sufficient to establish a causal relationship between a current disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Specifically, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, supra; see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Additionally, lay persons can provide an eye-witness account of a Veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of a disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Service connection can be granted for certain diseases, including an organic disease of the nervous system, if manifest to a degree of 10 percent or more within one year of separation from active service. The Veteran contends that his current respiratory and neurological symptomatology are the result of his manganese exposure during active duty service. Specifically, the record indicates that the Veteran's complaints noted various diagnoses including asthma and sleep apnea with regard to respiratory issues and various other neurological symptoms associated with chronic fatigue including fatigue, myalgias, tremors, memory difficulties, and vertigo. The Veteran's service treatment records note, as a potential medical hazard, that the Veteran was exposed to metal fumes through use of his welding equipment. The Veteran's November 1996 entrance examination was absent any diagnoses of neurological or respiratory symptomatology. The service treatment records do contain various complaints regarding ear, nose, and throat issues and the Veteran was diagnosed multiple times with bronchitis, sinusitis, and pharyngitis. The November 2000 separation examination report did not note any complaint of or diagnoses of neurological or respiratory symptomatology. Post-service treatment records, specifically VA treatment records from the VA Medical Centers (VAMCs) in Milwaukee and Minneapolis, revealed that the Veteran had been seen with complaints of nausea, dizziness, weakness, twitching, forgetfulness, double vision, and pressure-type headache. See October 2003 GI note (Milwaukee); September 2004 telephone care nurse triage note (Minneapolis). There was no evidence to suggest that the Veteran had been diagnosed with manganism or manganese poisoning. A March 2006 VA record reported that the Veteran continued to have memory impairment, tremors of the upper extremities, and gait disturbance. Neurological examination revealed positive Rhomberg test, fine tremor in the Veteran's right hand at rest and with activity, gait disturbance (tracking to the left), significant impairment of recent memory, and profound difficulty with serial sevens. The assessment indicated that the Veteran had multiple neurological symptoms that were consistent with a documented history of chronic exposure to manganese in service. See PC CBOC staff F/U note. In addition, the Veteran provided an internet article on manganism that indicates welders may be exposed to manganese fumes. See record from http:// www.manganism.org. With regard to the Veteran's respiratory symptomatology, in July 2009, a VA pulmonary specialist reviewed the Veteran's service and post-service treatment records and noted that the Veteran's only documented respiratory disorder, at that time, was sleep apnea which the examiner determined was not the result of exposure to toxic fumes. The examiner further noted that the Veteran's service treatment records indicated that he was treated multiple times for bronchitis, pharyngitis, and sinusitis during active duty. The examiner further noted that upon review of the service treatment records, the Veteran's recurrent in-service symptoms were at least as likely as not to have had their onset during active service as a result to exposure to toxic fumes. However, as noted on the most recent April 2011 VA examination, those symptoms resolved after service with no residuals. And despite his statement, the July 2009 examiner also noted that the Veteran's only documented respiratory disorder at that time was sleep apnea. As such, the Board finds that service connection for these conditions is not warranted, as a current disability of bronchitis, pharyngitis, and/or sinusitis is not shown, and the VA examiner determined that sleep apnea was not the result of exposure to toxic fumes. The April 2011 VA examination for miscellaneous respiratory disorders noted that PFTs performed showed a minimal obstructive lung defect and a mild restrictive lung defect. The examiner did not diagnose the Veteran with a respiratory disorder. He attributed the Veteran's mild restrictive lung defect to obesity and the minimal obstructive defect to a history of smoking. He further noted that neither defect was due to manganese exposure or toxicity. In a June 2011 addendum to the April 2011 VA examination, the examiner provided a diagnosis of mild asthma, but did not link that diagnosis to any manganese exposure or toxicity. As such, the Board finds that the Veteran's respiratory disorders are not the result of manganese poisoning or toxicity. The Veteran also contends that his various neurological symptoms are the result of manganese poisoning. The Veteran was afforded a VA neurological examination in June 2009. He reported memory difficulties, soreness in joints, an intermittent tremor in his right hand, and external myalgias. After examination, the examiner noted that the Veteran did have a tremor in his right hand and memory difficulties, but he opined that neither symptom was the result of manganese poisoning in service. Indeed, he noted the tremor was an essential tremor that was likely familial in origin. The examiner reiterated his opinion in a September 2009 addendum. In contrast, the same VA doctor who examined the Veteran in March 2006, Dr. S. C., as noted above, also submitted a letter in October 2006, which reported that the Veteran had been receiving evaluation and treatment for constitutional symptoms to include fatigue, memory loss, obesity, myalgias, sexual dysfunction, chronic anxiety, and tremors. Dr. C. indicated that the Veteran had provided documentation to support his exposure to manganese while working as a welder on active duty at the Portsmouth Naval Shipyard in 1998. Dr. C. reports that the Veteran was evaluated for metal fume fever during service but failed to receive the necessary follow up warranted to ensure that long terms adverse effects were documented and addressed. It was Dr. C.'s opinion, after review of the supportive literature that outlines demonstrable sequela of short and long term exposure to manganese, that it is more likely than not that the Veteran's chronic subjective/objective symptoms are related to his military exposure to manganese while on active duty. Additionally, in an April 2010 letter from the Veteran's private doctor noted that the Veteran's current sequela was consistent with manganese poisoning due to exposure to manganese during active duty service. The private doctor cited Dr. C.'s conclusion and agreed with his assessment. Finally, she noted that the Veteran's toxic exposure is believed to be the etiology of his fibromyalgia, chronic fatigue, tremors and vertigo. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. With consideration of the above, the Board notes that the evidence is at least in equipoise with regard to whether the Veteran's neurological symptomatology, including chronic fatigue and associated symptoms such as fatigue, tremors, and myalgias, are related to in-service manganese exposure. The October 2006 letter from Dr. C. specifically noted that he had reviewed supportive literature that outlined demonstrable sequela of short and long term exposure to manganese and determined that the Veteran's chronic subjective and objective symptoms were related to manganese exposure during active duty service. The Board acknowledges the June 2009 VA examiner's opinion that the Veteran's tremors were likely of a familial origin and that his memory loss problems were not related to manganese exposure. Indeed, his memory problems were associated with his service-connected depression in the April 2011 VA examination. Because his memory loss problems have been determined to be a symptom of another service-connected disability, that symptom will not be considered to be associated with manganese poisoning. With regard to the opinion on the Veteran's right hand tremor, the Board notes that the evidence is in equipoise and as such will grant the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additionally, the Board acknowledges the Veteran's contentions that he began having his current symptomatology not long after his separation from service. The Board further acknowledges that with regard to continuity of symptomatology, symptoms as opposed to treatment are of primary interest. The Board notes, however, that laypersons are generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). As noted above, as a lay person, the Veteran is not competent to provide evidence as to complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his opinion is not competent with regard to diagnoses or an assessment as to etiology. However, with regard to the Veteran's claim for chronic fatigue and associated symptomatology as related to manganese exposure, the Board finds there is competent and credible medical evidence that supports the Veteran's claim and it therefore warrants service connection. In consideration of all the above, the Board finds that the Veteran does have a current diagnosis of chronic fatigue which includes symptoms such as fatigue, tremors, and myalgias, and the evidence is in relative equipoise with regard to the issue of whether the Veteran's current diagnosis is the result of manganese poisoning during active duty service. Given the benefit of the doubt rule, the Veteran's claim must be granted. Gilbert at 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for residuals of manganese poisoning, to include chronic fatigue which includes symptoms such as fatigue, tremors, and myalgias, is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs