Citation Nr: 1329181 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-08 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for autoimmune disease as result of exposure to herbicides (claimed as dysautonomia, neutrally mediated hypotension (NMH), chronic fatigue syndrome (CFS), Hashimoto's thyroiditis, and Celiac Disease). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. The RO additionally denied claims of service connection for bilateral hearing loss, tinnitus, and PTSD. The Veteran presented testimony before the Board in September 2012. A transcript of the hearing has been associated with the claims folder. In April 2013, the Board denied the claims of service connection for bilateral hearing loss and tinnitus. The Board awarded service connection for PTSD, which was implemented by the RO in an April 2013 rating decision. Finally, the Board remanded the claim for autoimmune disease for further development and adjudication. The matter has been returned to the Board and is now ready for appellate disposition. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam and is presumed exposed to herbicides, including Agent Orange. 2. The competent and probative medical evidence of record preponderates against a finding that the Veteran's autoimmune disease is due to events in active service, to include herbicide exposure; as chronic diseases, neither endocrinopathies or an organic disease of the nervous system, are shown to have been manifested to a compensable degree within one year after the Veteran's separation from service in November 1971. CONCLUSION OF LAW The criteria for service connection for autoimmune disease as a result of exposure to herbicides have not been met. 38 U.S.C.A. §§ 1101, 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in August 2006. VA has obtained service treatment and personnel records, assisted the Veteran in obtaining evidence, and afforded him a VA examination. He presented testimony before the Board in September 2012; the transcript is of record. In April 2012, the Social Security Administration (SSA) notified the RO that the Veteran's medical records had been destroyed. In May 2013, the RO notified Veteran that his SSA records were unavailable. He was asked to submit any records in his possession, which he did not. A formal finding on the unavailability of SSA records was made in July 2013. In July 2013, the Veteran indicated that he did not have any official records of his SSA disability application. Any further attempts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(1). In August 2013, the Board received a duplicate letter from Dr. CB dated in November 2010. The Board also received a September 2012 letter from Dr. CB, which is essentially duplicative of her May 2013 letter. As there would be no material changes in or additions to the July 2013 supplemental statement of the case, a remand is not necessary. 38 C.F.R. § 19.31. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and virtual record (including Virtual VA and Veterans Benefits Management System). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant 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 each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some 'chronic diseases,' such as endocrinopathies and other organic diseases of the nervous system, presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this decision, the Board has considered all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran contends that he is entitled to service connection for autoimmune disease. Specifically, he asserts that his dysautonomia, NMH, CGS, Hashimoto's thyroiditis, and Celiac Disease are the result of exposure to herbicides during his active military service. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam (RVN) during the period beginning on January 9, 1962, and ending on May 7, 1975, 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(f). Service in Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313. For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the service person must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (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.). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. §§ 1113, 1116 and 38 C.F.R. §§ 3.307(d), 3.309(e). Diseases associated with such exposure include: AL amyloidosis; chloracne or other acneform diseases consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; Ischemic heart disease (does not include hypertension, peripheral manifestations of arteriosclerosis, or any other condition that does not quality within the generally accepted medical definition of Ischemic heart disease); all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). These diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. When a disease is first diagnosed after service but not within an applicable presumptive period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). If there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303 ; Combee at 1043-44. Initially, the Board notes that the Veteran's DD214 confirms he was in RVN from January 1971 to November 1971. Therefore, having served in the RVN, the Veteran is presumed to have been exposed during his period of service to an herbicide agent. 38 U.S.C.A. § 1116(f). Although the Veteran is now presumed to have been exposed to herbicides during service, this does not mean that all of the factors for basic entitlement to service connection have been met. 38 C.F.R. § 3.303(a). While the Veteran has been diagnosed with autoimmune disease (dysautonomia, NMH, CFS, Hashimoto's thyroiditis, and Celiac Disease), which he claims is associated with herbicide exposure, these disorders are not one of the presumptive diseases set forth in 38 C.F.R. § 3.309(e). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994). See also 61 Fed. Reg. 41442-41449, and 61 Fed. Reg. 57586-57589 (1996). Dysautonomia, NMH, CFS, Hashimoto's thyroiditis, and Celiac disease are not among the listed diseases for which service connection may be established as due to herbicide exposure based on presumption. 38 C.F.R. § 3.309(e). Notwithstanding the aforementioned provisions relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. Combee, 34 F.3d at 1042. Thus, the Board shall proceed with determining entitlement to service connection on a direct causation basis. Endocrinopathies and other organic diseases of the nervous system are "chronic diseases" under 38 C.F.R. § 3.309(a). Thus, consideration under 38 C.F.R. § 3.303(b) is warranted. Where a combination of manifestations sufficient to identify a 'chronic disease' in service, and establish chronicity at the time are present, any later manifestation of the same 'chronic disease' is subject to service connection unless attributable to an intercurrent cause. 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. The Veteran's service treatment records are devoid of complaints, treatment, or diagnoses of autoimmune disease, including dysautonomia, NMH, CFS, Hashimoto's thyroiditis, and Celiac disease. The Veteran informed the May 2013 VA examiner that he began experiencing diarrhea and fatigue a couple of weeks prior to discharge and that the fatigue has continued since then. While there was a single report of diarrhea, dizziness, and weakness in November 1971, the Veteran indicated it was since eating sea rations and the typhoon. There were no further complaints in service. The November 1971 separation examination was negative for complaints or diagnosis of an autoimmune disease or diarrhea and fatigue. Serology tests were non-reactive. The Veteran stated "my condition is good." To the extent that the Veteran may be asserting that he had continued or ongoing problems with fatigue since service, these statements are not found to be credible for the purpose of establishing a continuity of symptomatology following service. 38 C.F.R. § 3.303(b); Layno v. Brown, 6 Vet. App. 465 (1994); see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Notably, the Veteran informed the 2013 VA examiner that fatigue with shortness of breath and exercise began in the late 1980s, which is not supported by the objective medical evidence of record. In fact this statement is contrary to reports made to Dr. WSA that dizziness, lightheadedness, extreme nausea, and profound fatigue after slight exertion began in March 1993. Autoimmune dysfunction, NMH and CFS were first diagnosed in 1997. See December 1997 letter from Dr. WSA. The first diagnosis of Hashimoto's thyroiditis and Celiac disease is noted in an April 2006 letter from Dr. CB. Clearly, these are outside the one-year presumptive period for endocrinopathies or organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309. Even when considering the Veteran's reported onset of symptoms to Dr. WSA as March 1993, this is still some 22 years after his separation from active military service. This lengthy period without treatment (between separation from service in 1971 and the reported complaints beginning in 1993 and the diagnosis in 1997) weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). As autoimmune disease, including dysautonomia, NMH, CFS, Hashimoto's thyroiditis, and celiac disease, 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, the preponderance of the evidence is against a finding that the Veteran's autoimmune disease is the result of his active military service, to include exposure to herbicides. First and foremost, the May 2013 VA examiner must be afforded greater weight than the opinions of Dr. CB. The May 2013 VA opinion was rendered after a complete review of the claims folder and physical examination of the Veteran. The May 2013 VA examiner opined autoimmune disease was less likely related to in-service herbicide exposure and/or another incident of active military service. The examiner reasoned that the medical literature regarding agent orange and the claimed conditions were reviewed and did not show a direct causational link between dysautonomia, NMH, CFS, Hashimoto's thyroiditis, and Celiac disease. In December 1997, Dr. WSA found that the Veteran's autoimmune disease was of "unknown origin." In contrast, the September 2012 letter from Dr. CB indicates she was "almost certain [the Veteran's] exposure to Agent Orange while serving in Vietnam was the trigger and contributed greatly to the manifestations of his illness." In May 2013, Dr. CB indicated that she was "80% certain [the Veteran's] exposure to Agent Orange, while serving in Vietnam, was the trigger and contributed greatly to his diseases and their numerous manifestations." Dr. CB's opinion is not probative of the matter on appeal. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches, as is true of any evidence, the credibility and weight to the attached medical opinions are within the province of the Board). Dr. CB's statements are equivocal at best. She provided no supporting rationale for the expressed opinions, i.e. she did not include a discussion of the underlying medical rationale for her opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (indicating an opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Further, she made no attempt at explaining her own treatment records dated in January 2008, which reveals that the Veteran had familial dysautonomia. Moreover, her opinion as to etiology of the Veteran's autoimmune disease is too speculative as evidenced by her own admission that she was "almost certain" and/or "80% certain" and thus, not probative of the matter on appeal. See Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). As outlined above, autoimmune disease is not a disease associated with herbicide exposure and the competent medical evidence of record concludes that autoimmune disease is not related to service, to include exposure to herbicides. A 'chronic disease' was not present to a degree capable of identifying the disease entity during service. No symptoms related to autoimmune disease has been identified in the post-service medical record for continuity of symptomatology. The Board concludes that service connection for autoimmune disease is not warranted under 38 C.F.R. § 3.303(b). In sum, the preponderance of the evidence is against the claim and the appeal involving service connection must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for autoimmune disease as result of exposure to herbicides (claimed as dysautonomia, NMH, CFS, Hashimoto's thyroiditis, and Celiac Disease) is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs