Citation Nr: 1310164 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-44 031 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a lung disorder, claimed as lung cancer. 2. Entitlement to service connection for a heart disorder, claimed as ischemic heart disease due to exposure to Agent Orange. 3. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, type 2. 4. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, as secondary to the service-connected diabetes mellitus, type 2. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from October 1968 to October 1970 and from November 1975 to January 1984. His first period of service was honorable. For his second period of service he was give a bad conduct discharge pursuant to a special court martial conviction. (The second period of service has been found not qualify for VA compensation benefits.) These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2010, November 2010, and January 2012 rating decisions of the Louisville RO. The Board has reviewed the contents of the Veteran's electronic ("Virtual VA") file and found no medical or other evidence pertinent to this appeal that is not in the claims file. The issues of service connection for bilateral upper and lower extremity peripheral neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides while on active duty in Vietnam. 2. A lung disorder was not manifested in service and is not the result of presumed exposure to in-service herbicide exposure, or any other event or incident of the Veteran's service. 3. The Veteran's contention that his lung diagnoses are etiologically related to service is not competent evidence. 4. The Veteran did not have a heart disorder during service and he is not shown to currently have a heart disorder, to include ischemic heart disease. CONCLUSIONS OF LAW 1. The Veteran does not have a lung disorder that was incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317 (2012). 2. The Veteran does not have a heart disorder that was incurred or aggravated in serviced. 38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Pre-decisional letters in December 2009 and March 2010 informed the Veteran of the evidence and information necessary to substantiate his claims, the information required of him to enable VA to obtain evidence in support of his claims, and the assistance that VA would provide to obtain information and evidence in support of his claims. He was also given notice of disability ratings and the effective dates of awards. The Board also finds that VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). The Veteran's service treatment records are associated with his claims file, and VA has obtained all pertinent/identified records that could be obtained. The RO arranged for VA examinations that are adequate for deciding the claim. See Barr v. Nicholson, 21. Vet. App. 303 (2007). VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. MERITS OF THE CLAIMS The law provides that service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. The resolution of this issue must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which the claimant served, his medical records and all pertinent medical and lay evidence. Determinations relative to service connection will be based on review of the entire evidence of record. 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the 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, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). To establish service connection based on continuity of symptomatology, the claimant must have one of the chronic diseases enumerated at 38 C.F.R. § 3.303(a). Walker v. Shinseki, __ F.3d __, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 1990). 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. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Specifically, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). However, laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). If a veteran served on active duty in the Republic of Vietnam during the Vietnam era (beginning on January 9, 1962 and ending on May 7, 1975), the veteran is presumed to have been exposed to herbicides, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (emphasis added); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009) (finding valid VA's interpretation that grants the presumption of exposure to Agent Orange to a veteran who set foot in Vietnam or served on a vessel that traveled on inland waterways of Vietnam, but not to a veteran who served on a vessel in the waters off the coast of Vietnam without setting foot in or travelling the inland waterways of Vietnam). Certain diseases listed at 38 C.F.R. § 3.309(e) are presumed to be due to exposure to herbicide agents if manifesting to a degree of 10 percent or more at any time after service. However, none of the lung disorders with which the Veteran reportedly had been diagnosed with are listed at 38 C.F.R. § 3.309(e). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 (2007). Notwithstanding the provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2 ,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d) (2012). A. Lung Disorder Initially, the Veteran alleged that he had lung cancer that was due to Agent Orange exposure while in Vietnam. Since his service treatment records confirm his presence in Vietnam, exposure to Agent Orange and other herbicides is presumed. 38 U.S.C.A. § 1116(a)(3) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). However, he does not have any currently diagnosed lung disability that would entitle him to presumptive service connection. See Notice, 72 Fed. Reg. 32,395. In an October 2010 notice of disagreement, he asserted that neoplastic disease was lung cancer and that since the diagnosis was not ruled out on a July 2009 CT scan of his chest service connection should be granted on this basis. While the July 2009 CT scan indicated that neoplastic disease could not be excluded, he went on to have 2 subsequent CT scans that did essentially rule out the diagnosis. In May 2010, the Veteran had another CT scan of his chest and the impression was that there was no significant change in the multiple noncalcified, subcentimeter, pulmonary nodules scattered throughout both lungs. There was no significant change in the mediastinal nodes and borderline enlarged subcarinal node. The impression was that it was probably related to old granulomatous disease. The Veteran denied a history of smoking and mild centrilobular and paraseptal emphysema were present. An April 2011 CT chest scan showed that the findings revealed no interval change in the multiple subcentimeter bilateral pulmonary nodules when compared with the July 2009 examination. The conclusion was that the nodules were benign and that no further follow-up was necessary. Furthermore, VA examinations of March 2010 and July 2011 do not contain a diagnosis of lung cancer. Thus, there is no probative evidence that shows the Veteran had lung cancer. Accordingly, the presumptive provisions do not apply. Although under Combee, the Veteran is not precluded from establishing service connection with proof of direct causation, there is no competent evidence of an etiological relationship between his presumed exposure to herbicides and any current respiratory disability. 34 F.3d at 1042. In addition, there is no evidence of a lung disability during service or within the initial post-service year. Service treatment records from the Veteran's first (honorable) period of service do not contain evidence of a lung disorder. October 1969 records contain vague complaints that his chest felt "filled up" and he was found to have marked inspiratory and expiratory wheezing, but chest x-rays were normal. It is notable that a February 1970 service treatment record shows the Veteran had a mental evaluation in which it was determined that due to a diagnosis of immature personality physical symptoms were manifestations of his basic personality problem. The Board also notes some indication that the Veteran is not overall credible as evidenced by his allegation in a May 2010 letter to the Secretary of VA that he is the recipient of three awards of the Purple Heart and a Bronze Star. The Veteran has thus indicated that he is to some extent not credible. Post-service private treatment records contain assessments of bronchitis and possible bronchitis in September 1999 and March 2000. There is no earlier evidence of a lung disorder or current evidence of bronchitis. There is also no probative evidence of record that suggests the presence of an etiological relationship between a current lung disorder and the Veteran's period of honorable military service. The Veteran's primary physician noted in November 2009 that emphysema was found on the CT scan and that the Veteran was a lifelong non-smoker, but he did not offer an opinion as to the likely etiology of the disorder. In contrast, a November 2009 private treatment record notes a history of chronic obstructive pulmonary disease (COPD) and indicates that the Veteran had some chronic lung problems that were probably related to second-hand smoke. In March 2010, the Veteran underwent a VA compensation examination that was not for the purpose of evaluating the lung disorder, but the examiner nevertheless included a diagnosis of COPD that was not based on the examination, rather he indicated that a private physician noted chronic pulmonary disease. However, there is no evidence that links the Veteran's history of COPD to his first period of service. In April 2011, the Veteran specifically reported that he was not alleging asbestos exposure. On July 2011 VA respiratory compensation examination, the Veteran's claims file was reviewed and pertinent aspects of his medical history were noted. The Veteran denied having lung cancer, but stated he had nodules in his lungs that were noted on a CT scan. The examiner indicated there was no history of restrictive disease or a condition underlying the restrictive disease such as kyphoscoliosis or pectus excavatum. Chest x-rays revealed no active disease in the chest. Pulmonary function tests (PFTs) revealed no evidence of an obstructive lung defect. The diagnosis was that the Veteran did not exhibit radiographic evidence of malignancy or prior exposure to asbestos. The PFTs exhibited a normal diffusion capacity that is decreased in asbestosis. He opined that the Veteran's occupation as a construction mechanic in the Navy was an occupation that was considered to have minimal exposure to asbestos and he opined that the Veteran's current respiratory condition was not related to or secondary to his minimal exposure to asbestos. Despite the diagnosis of a current lung disorder, there is no evidence of a lung disorder in service or of a nexus that links any current disorder to service. The earliest indication of a lung disorder occurred decades after the Veteran's service. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Even though the impression of the May 2010 CT scan was that the nodules were probably related to old granulomatous disease there is no evidence that suggests the initial granulomatous disease dated back to his military service. Apart from his demonstrated lack of credibility as noted above, while the Veteran may subjectively believe that he has a lung disorder that was caused by service, there is no probative evidence that supports his belief. The Veteran has not submitted nor does the record contain any medical nexus evidence that supports his claim. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of the Veteran's lung disorder is complex enough to fall outside the realm of common knowledge for a lay person. Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (observing laypersons not competent to state in- service symptoms were indicative of rheumatic fever). In short, there is no evidence of a lung disorder in service or within the initial post-service year, and no competent evidence of an etiological relationship between any lung diagnosis and his period of honorable military service. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49 (1990). B. Heart Disorder The Veteran contends that he has ischemic heart disease due to exposure to herbicides during his Vietnam service. While ischemic heart disease is among the list of disabilities for which presumptive service connection is available (see 38 C.F.R. § 3.309 (e)) for those who served in Vietnam and are presumed to have been exposed to Agent Orange, the Veteran is not shown to have ischemic heart disease or any other heart disorder. The threshold criterion for service connection is the existence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). While there is conflicting evidence regarding the presence of a heart disorder, the Board finds that the more probative evidence shows that a heart disorder does not exist. Based on a July 2009 ECG that contained borderline results, the Veteran was referred to Dr. T. B, a cardiologist. A September 2009 letter from the cardiologist indicates the Veteran did not have a cardiac history, but he did have a longstanding history of cardiac risk factors. The Veteran reported having some chest discomfort that he believed may have been partly out of concern regarding the abnormal electrocardiogram. He described several different types of chest pain, none of which were exertional in nature. The physician also noted that there were no associated symptoms. The assessment was precordial chest pain. The Veteran had mild resting EKG abnormalities and a stress test for further evaluation was recommended. A November 2009 statement from Dr. S. N, the Veteran's private physician, indicates that the July 2009 EKG was reviewed and that ischemic changes were noted in inferior lead that suggested underlying coronary disease. The Veteran was afforded VA examinations in March 2010 and January 2012 to determine the nature and etiology of the claimed disability. The March 2010 examiner noted pertinent aspects of the Veteran's medical history that included the abnormal EKG and a December 2009 exercise EKG/stress test that was negative; it revealed a normal myocardial perfusion study without infarction or reversible ischemia and a normal ejection fraction at 65%. The Veteran complained of left chest discomfort with some fluttering about twice a year that lasted 5 minutes. EKG and chest x-rays were normal, and the diagnosis was that there was no objective evidence of ischemic heart disease. In a statement dated in April 2011, Dr. S. N stated that the Veteran was known to have calcified changes in coronary arteries and that he was currently under the care of a cardiologist for ischemic heart disease. Due to this statement, he was afforded the second heart VA examination. On this examination, in January 2012, the examiner specifically noted Dr. S. N.'s statement and that the Veteran's stress test had subsequently ruled out coronary artery disease. No additional testing was done and the Veteran admitted that he never actually had a diagnosis of ischemic heart disease. The report indicated that there was no diagnosis of ischemic heart disease or any other heart disorder. Although Dr. S. N indicated that the Veteran had coronary artery disease, the evidence of record suggests otherwise. Despite the abnormal ECG in July 2009, there is no evidence of a heart disorder. A December 2009 stress test ruled out heart disease and both VA examiners found no evidence of a heart disorder. Absent the finding of a current heart disorder, there can be no valid claim of service connection. As a preponderance of the evidence is against the claim of service connection, the provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and his claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for a lung disorder is denied. Service connection for a heart disorder is denied. REMAND A January 2012 rating decision denied service connection for peripheral neuropathy in the upper and lower bilateral extremities. In June 2012, the RO received the Veteran's notice of disagreement with this decision, but no additional action is shown to have been taken. The Board is obligated to remand the issues of entitlement to service connection for peripheral neuropathy of the upper and lower bilateral extremities for the issuance of a statement of the case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). The Board is not obligated, however, to undertake any additional action such as development of these claims. Therefore, the Veteran may submit medical evidence in support of his claims for service connection. Accordingly, the case is REMANDED for the following action: Issue the Veteran an SOC regarding the issues of entitlement to service connection for peripheral neuropathy of the upper and lower bilateral extremities. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2012). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs