Citation Nr: 1314569 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 09-01 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. 2. Entitlement to service connection for a neurological disorder of the upper and lower extremities, to include peripheral neuropathy and/or chronic inflammatory demyelinating polyneuropathy (CIDP), to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating action by the above Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Veteran testified at a travel Board hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes that at that time, the parties essentially agreed to consolidate as one issue the claims involving service connection for peripheral neuropathy and/or CIDP. In this regard, both specific conditions are encompassed and contemplated by the more general issue of entitlement to a neurological disorder of the upper and lower extremities, and accordingly the issue has been recharacterized as shown on the title page of this decision. In September 2011, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. After completing additional development, the AMC continued to deny the claim (as reflected in a July 2012 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. The Board then remanded the claim a second time in October 2012 in order to obtain records pertinent to the Veteran's receipt of Social Security Administration disability benefits. Such development having been completed, it has been returned to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran served during the Vietnam era, but his service did not include duty in or visitation to the Republic of Vietnam and he is not entitled to a presumption of herbicide (Agent Orange) exposure. 2. Diabetes mellitus was not first diagnosed until many years after the Veteran's active duty and is not related in any way to such service, to include herbicide exposure. 3. The Veteran's neurological disorder of the upper and lower extremities, to include peripheral neuropathy and/or CIDP was not first diagnosed until many years after the Veteran's active duty and is not related in any way to such service, to include herbicide exposure. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by active service, and may not be presumed to have been incurred in service due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A neurological disorder of the upper and lower extremities, to include peripheral neuropathy and/or CIDP was not incurred in or aggravated by active service, and may not be presumed to have been incurred in service due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These 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 v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in April 2006, November 2006, June 2006, and September 2011 of VA's duty to assist him in substantiating his service connection claims and the effect of this duty upon his claims. These letters also informed him of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. Together, these letters addressed all notice elements. Because at least three of these letters addressed all notice elements and predated the initial adjudication these claims by the AOJ/RO in February 2007, nothing more was required. VA has also satisfied its duty to assist the Veteran in the development of his claims. In-service and post-service treatment reports as well as medical records from the Security Administration (SSA) are of record. For his part, the Veteran has submitted personal statements, information from various websites, private medical evidence, duplicate medical evidence, and representative argument. Further, his Virtual VA electronic file has been reviewed and no additional relevant evidence has been associated therewith. He has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. To the extent that the Veteran was able to provide identifying information, actions were taken to attempt to obtain evidence that would support his claim of herbicide or toxic chemical exposure. He has not identified any existing records that would substantiate his claim nor is there any indication that the service department's report finding, in essence, that there was no evidence of testing, or storage of tactical herbicides, such as Agent Orange at any location on Lackland Air Force Base (AFB), Kelly Air AFB, or its Annex, was based upon inaccurate or incomplete information. It is presumed that the service department's determination considered all available sources of information adequately and competently and in the normal course of its operations. Although the Veteran claims that his duties as a vehicle operator/dispatcher included transporting drums/barrels and containers of hazardous materials, specifically Agent Orange, between Lackland and Kelly AFBs, his statements as to the contents of these barrels has not been verified by service department records. The Board finds that the AMC/RO made all reasonable efforts to assist the Veteran in obtaining evidence in this case and that further efforts would be futile. In this case the Veteran was not examined for the purpose of addressing his diabetes mellitus and peripheral neuropathy claims. Under the VCAA, VA is obliged to provide an examination when the veteran presents a claim for service connection and meets the threshold requirements that there was an event, injury, or disease in service; there is evidence of current disability or recurrent symptoms; and the evidence of record indicates that the claimed disability or symptoms may be associated with service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Indeed, as discussed in further detail below, the diagnoses of diabetes mellitus and peripheral neuropathy are firmly established. So in this case, the Veteran's claims turn largely on the locations of his service, rather than on any medical question. Moreover, the Veteran makes no contention that either disorder had its onset in service, within one year of service discharge, or is related to his active service other than his purported exposure to herbicides. As such, the Board finds that a VA examination or medical opinion in this case is not required. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him of the evidence needed, and in obtaining evidence pertinent to his claims. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Law and Analysis The Veteran seeks to establish service connection for diabetes mellitus and for a neurological disorder of the upper and lower extremities, to include peripheral neuropathy and/or CIDP on a presumptive basis due to his alleged exposure to herbicide agents during active duty. Specifically he asserts that his claimed conditions are the result of exposure to toxic chemicals and herbicides, which he handled primarily at Kelly AFB in San Antonio, Texas, while assigned at Lackland AFB in San Antonio, Texas. See VA Form 21-4138 dated in June 2006. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as diabetes mellitus, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection is 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). 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. 38 C.F.R. § 3.303(a). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Service connection can also be established on a presumptive basis for certain diseases associated with exposure during service to herbicides. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of establishing service connection for a disability claimed to be a result of exposure to Agent Orange, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). The applicable criteria also provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Diabetes mellitus type II and acute/subacute peripheral neuropathy, are such diseases. 38 C.F.R. § 3.309(e). For purposes of presumed service connection based on herbicide exposure, acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date on onset. 38 C.F.R. § 3.309(e), Note 2. Recent litigation has upheld VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) cert. denied 129 S.Ct. 1002 (2009). However, if exposure to Agent Orange or other herbicide agents during active service at any location were to be established by the evidence, then the above presumptions as to service connection of the listed diseases could be invoked. See 38 C.F.R. § 3.307(a)(6)(ii); see also Haas, supra (providing that, even where a veteran did not serve upon the landmass of Vietnam, he is always "free to pursue his claim that he was actually exposed to herbicides while" in service.) After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). In this case, the Veteran contends that he was exposed to herbicides, specifically Agent Orange during service. He maintains that Kelly AFB was used as a storage facility for toxic chemicals used in Vietnam and that he ran deliveries and pickups of drums/barrels marked "hazardous" and/or having a skull and crossbones on them between Lackland and Kelly AFBs between 1973 and 1974. He indicated that a pump was used to transfer liquids between barrels and that a pit where items were also taken See VA Form 21-4138 dated in November 2006, VA Form 9 dated November 2008, and VA Form 21-4138 dated in October 2011. He indicated in hearing testimony provided in 2011 that his exposure was through proximity or inhalation from leakage of the herbicide from those barrels. Because the Veteran does not contend, and the evidence does not show, that he served in Vietnam or at any location overseas, the next question is whether he had exposure to Agent Orange or other toxic agents during active service at any location established by the evidence. The Veteran's DD 214 reflects that his military occupational specialty (MOS) was vehicle operator/dispatcher, but it is not clear that his duties typically involved exposure to Agent Orange or other toxic chemicals. However in support of his claim, he has submitted printouts of Internet articles and reports about how dangerous chemicals and herbicides had been stored and transported at Kelly AFB, resulting in later health problems and about contamination at other military toxic sites in Texas. The Veteran also submitted two pages from a Public Health Assessment of Kelly AFB prepared by the Agency for Toxic Substances and Disease Registry (ATSDR). In pertinent part, the report shows that the ATSDR completed a public health assessment for Kelly AFB in 1999 in order to identify potential human exposures to substances related to East Kelly activities by evaluation existing on-and off-site environmental data, community health concerns, and recommend appropriate public health follow-up activities. The East Kelly area was an annex located east of Kelly AFB that had historically been used for aircraft maintenance and hazardous waste storage and transport. From the 1940s to the mid-1970s engine repair facilities used a collection system to transport chemical wastes to a central location for disposal. Other wastes stored at East Kelly in the past contained herbicides, metals, PAHs, and volatile organic compounds (VOCs). It was also noted that leakage, spillage, and landfilling of these wastes had occurred throughout East Kelly and consequently contaminated the shallow ground water and soil. However, it was concluded that the levels of contaminants detected at on- and off-site locations associated with East Kelly AFB were not likely to cause adverse health effects and the current site conditions did not pose a public health threat. Pursuant to the Board's September 2011, the AMC/RO contacted VA's Compensation Service via email at VAVBAWAS/CO/211/AGENT ORANGE to request a review of the Department of Defense's (DoD) inventory of herbicide operations to determine whether herbicides were used as the Veteran has alleged. A January 2012 response from the Agent Orange Mailbox indicated that the DoD list of sites associated with herbicide use or testing does not show any use, testing or storage of tactical herbicides, such as Agent Orange at any location on Lackland AFB, Kelly AFB, or Kelly AFB Annex. In February 2012, based on all evidence, the AOJ's U.S. Army and Joint Services Records Research Center (JSRRC) coordinator made a formal finding that the Veteran's alleged Agent Orange exposure while working at the Lackland and Kelly AFBs could not be verified. See VA Adjudication Procedure Manual, M21-1MR Part IV.ii.2.C.10.o. Unfortunately, the record presents no basis for finding that the Veteran was exposed to tactical herbicide agents in service, as alleged. The Board has no reason to disbelieve the Veteran's statements that he participated in transporting materials between various bases. Such contentions are consistent with the Veteran's duties as a vehicle operator, which is documented on his Form DD-214. The problem is that the Board is unable to find that he was exposed to herbicides in performing such duties, because there is no evidence in the record that would tend to show that this was the case. Although some information indicates that the Kelly AFB Annex was used for hazardous waste storage, there is no indication that a tactical herbicide such as Agent Orange was stored there. Rather, it appears that the Veteran's contentions with respect to purported exposure to Agent Orange amount to speculation on his part - speculation that the barrels/drums he transported contained Agent Orange. Neither the Veteran nor his representative has specifically identified any evidence beyond the Veteran's conjecture that would indicate Agent Orange exposure and his account that he was exposed to Agent Orange while transporting hazardous materials has been contradicted by the JSRRC finding. Because there is no evidence that the barrels/drums contained herbicides, the Board cannot find that the Veteran was exposed to herbicides in the discharge of his duties. In sum, official attempts to corroborate the claim that tactical herbicides, such as Agent Orange were used in areas where the Veteran was stationed during his service have been negative. The Board finds the official information obtained from DoD and JSRRC to be reliable and highly probative. Based on this record, the Board finds that Agent Orange exposure has not been shown. Nevertheless, even if a Veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Stefl v. Nicholson, 21 Vet App 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Diabetes Mellitus With regard to whether the evidence establishes a direct connection between the Veteran's service and his development of diabetes mellitus, the Board notes that service treatment records fail to reveal any symptomatology suggestive of diabetes mellitus, and there is no evidence that diabetes was manifested in the first postservice year. The earliest clinical record showing that the Veteran had diabetes mellitus is dated in May 2006, 32 years after his discharge from service, when it was noted that his glucose levels were consistently elevated and he was started on the medication, Metformin. Also, there is an essential absence of continuity of symptomatology during those intervening years after service ended and before the recurrence of relevant pathology consistent with 38 C.F.R. § 3.303(b). Although not a dispositive factor, the significant lapse in time between service and post-service diagnosis of diabetes mellitus may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). What remains for consideration is whether or not in the absence of a diagnosis in service and/or continuity of symptoms, the Veteran's diabetes may nonetheless somehow otherwise be related to his service. However, there is no medical evidence linking the Veteran's diabetes mellitus to his military service decades earlier and the Veteran has not submitted any medical opinion that relates his diabetes to his service/events therein. See Hickson v. West, 12 Vet. App. 247. As a result, the Board finds that service connection for diabetes mellitus is not warranted. As diabetes mellitus was not shown during service or for years thereafter, service connection can only be granted if there is some competent evidence linking the current disability to service. Here, there is no such competent evidence. 2. Neurological disorder of the upper and lower extremities, to include peripheral neuropathy and/or CIDP With respect to peripheral neuropathy, the Veteran does not contend that he had signs or symptoms of peripheral neuropathy during service or soon after service, and available medical records from that time do not show any such signs or symptoms. Moreover, the evidence of record does not support the contentions that the Veteran's peripheral neuropathy is related to his military service. The post-service records are negative for complaints, treatment or diagnosis of peripheral neuropathy or CIDP until many decades after service. In fact, the first evidence of the Veteran's neurological treatment is in June 1995, when he was treated for complete left wrist drop with tingling and numbness associated with radial nerve palsy of the left upper extremity. It was noted that the Veteran had gone out drinking the night before, but was not particularly inebriated. He was counseled to discontinue drinking in order for the nerves to heal correctly and to avoid re-injury. In addition to the lack of evidence showing that peripheral neuropathy of the hands and feet manifested during service or within close proximity thereto, as well as the absence of evidence of a continuity of relevant symptoms since active duty, the competent and credible evidence of record does not link the Veteran's current peripheral neuropathy to his military service. For instance, the record shows that the Veteran was next seen in March 2004 for a private neurologic consultation for numbness in the feet with pain. It was noted that he had a greater than 30 year history of heavy alcoholism. See private treatment records from L.M. Greenwald, M.D. and Camino Medical Group dated March 5, 2004, January 27, 2005, and December 27, 2005. See also report from MDSI Physician Services dated August 7, 2005. VA outpatient treatment records show that, in January 2006, the Veteran presented to a VA outpatient clinic to establish care largely for peripheral neuropathy. At that time he described as an extensive alcohol history. Electromyography (EMG) results showed electrophysiologic evidence of peripheral neuropathy with some demyelinating features. The Veteran also noted a history of peripheral vascular disease. The examiner concluded that given the Veteran's extensive alcohol history and what appeared on exam history to be a pure sensory distal neuropathy, he believed that the peripheral neuropathy was most likely alcohol related. Finally, it appears that in September 2006, the Veteran's private physician ultimately determined that the Veteran's peripheral neuropathy was multifactorial, including alcoholism, peripheral vascular disease, and an immune mechanism. As such, and in conjunction with the other evidence, namely apparent manifestation of peripheral neuropathy decades after discharge, the VA treatment records findings, and the private examiner's consistent opinions, the Board finds it reasonable to conclude that no basis to link the Veteran's active duty and any peripheral neuropathy is found in the record. In reaching this conclusion, the Board has not overlooked the Veteran's contentions; his statements to healthcare providers; or his written statements. Here, as already alluded to, the claim is primarily predicated on the notion the Veteran was exposed to herbicides (Agent Orange) during his military service and, therefore, the reason he eventually developed diabetes mellitus and peripheral neuropathy. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316 . Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) also held in Buchanan (and Davidson and Jandreau), however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. So to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating and determining causal connections for pituitary conditions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Although the Board recognizes the sincerity of the arguments advanced by the Veteran in this case, his contentions regarding the etiology of his claimed diabetes mellitus and peripheral neuropathy are not statements merely about symptomatology, an observable medical condition, or a contemporaneous medical diagnosis, but rather clearly fall within the realm of requiring medical expertise, which he simply does not have. That is to say, diabetes mellitus and peripheral neuropathy are not the types of condition that are readily amenable to mere lay diagnosis or probative comment on its etiology. So while the Veteran is competent to say he has experienced certain symptoms, even symptoms that often may be associated with an eventual diagnoses of diabetes mellitus and peripheral neuropathy, he is not in turn competent to ascribe these symptoms to disabilities related to his military service. Therefore, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for diabetes mellitus, type II is denied. Entitlement to service connection for a neurological disorder of the upper and lower extremities, to include peripheral neuropathy and/or CIDP is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs