Citation Nr: 1335981 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-34 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure. 2. Entitlement to service connection for chronic lymphocytic leukemia, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1968. These matters come before the Board of Veterans' Appeals ("Board") on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Oakland, California. These claims have previously been considered by the Board. In December 2012 and June 2013, the Board remanded the claims to the RO for additional development, specifically, to refer the Veteran's claims concerning his herbicide exposure to the US Army and Joint Services Records Research Center ("JSRCC") for further information. As there has been substantial compliance with the Board's remand directives, the matter is returned to the Board for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's diabetes mellitus is not related to disease, injury or event in service; diabetes mellitus, type II did not manifest within one year of service separation. 2. The Veteran's lymphocytic leukemia is not related to disease, injury or event in service; lymphocytic leukemia did not manifest within one year of service separation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for entitlement to service connection for chronic lymphocytic leukemia have not been met. 38 U.S.C.A. §§ 101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all 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. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Diabetes mellitus and leukemia are recognized as chronic conditions by 38 C.F.R. § 3.309(a). Service connection may 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) (2013). Certain chronic diseases, including diabetes mellitus and leukemia, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). As noted above, the Veteran is seeking entitlement to service connection for diabetes mellitus and chronic lymphocytic leukemia. The Veteran's service treatment records are negative for any complaints of or treatment for diabetes mellitus or chronic lymphocytic leukemia. Additionally, there is no evidence that either of these conditions manifest to a compensable degree within one year of service. While the Veteran concedes as much, he has argued that his diabetes mellitus and chronic lymphocytic leukemia were caused by exposure to a variety of toxins, including mercury, lead, copper, magnesium, lithium, perchlorate, TNT, napalm, depleted uranium, PCBs, solvents, and herbicides such as Agent Orange while training on Vieques Island, Puerto Rico in April 1967. Although the Veteran's service personnel records do not confirm his claims that he spent time in Vieques Island during his active military service, they do show that the Veteran was deployed on the USS Guam, which made stops in the Caribbean, and the Veteran has presented an April 1967 news article from the Gastonia Gazette showing that his Marine battalion participated in an approximately three week training exercise called Operation Clove Hitch III on Vieques Island in April 1967. Thus, affording the Veteran the benefit of the doubt, the Board will concede that the Veteran briefly spent time on Vieques Island, Puerto Rico during his active military service. However, the Veteran has failed to submit any probative evidence showing that the short time he spent on Vieques Island during his active service caused his later development of diabetes mellitus and chronic lymphocytic leukemia. While he has alleged exposure to Agent Orange while on Vieques Island, in August 2013 the JSSROC issued a formal finding that the use, testing, or storage of Agent Orange or other tactical herbicides on Vieques Island could not be verified. They explained that according to the Department of Defense, Vieques Island is not a known site of Agent Orange use or testing. Additionally, although the Veteran served during the Vietnam Era, there is no evidence that the Veteran ever served in the Republic of Vietnam or in the Korean Demilitarized Zone. Thus, the Board finds that the Veteran was not exposed to Agent Orange during his active military service. The Veteran has presented a February 2005 news release showing that the United States Environmental Protection Agency (EPA) has listed the Atlantic Fleet Weapons Testing Area on Vieques Island on the National Priorities List of hazardous waste sites because of likely contamination from a variety of toxins such as mercury, lead, copper, magnesium, lithium, perchlorate, TNT, napalm, depleted uranium, PCBs, solvents, and pesticides. The Veteran has argued that exposure to these toxins while training on Vieques Island led to his diabetes and leukemia, but unfortunately has not presented any evidence to support this theory. Even if the Board presumes that the Veteran spent time on Vieques, his mere presence on the island does not create any legal presumption that his claimed disabilities were caused by exposure to toxins there. There must be a nexus between his current medical problems and a disease, injury or event in service. There is nothing in the available VA and private treatment records to support the Veteran's contentions that his diabetes mellitus and chronic lymphocytic leukemia were caused by his visit to Vieques Island in April 1967. In March 2006, the Veteran's primary care physician, Dr. J.W., submitted a letter in which he stated that the Veteran's health problems could be the result of exposure to Agent Orange. However, not only is this opinion speculative, as discussed above, there is no evidence that the Veteran was ever exposed to Agent Orange or other tactical herbicide. Accordingly, the probative value of this letter is negligible. In support of his claim, the Veteran also submitted a December 2003 article that appeared in The Nation, stating that residents of Vieques Island have an increased incidence of cancer compared to mainland Puerto Ricans, as well as elevated rates of heart disease, asthma, and diabetes. While this article suggests that there is a positive correlation between the chemicals contaminating Vieques Island and health problems in its residents, the article speaks only in generalities and thus is not proof that in the Veteran's case, his exposure on Vieques caused his claimed disabilities. The Board again notes that the Veteran spent no more than a few weeks on Vieques, and thus any exposure to environmental toxins was limited in comparison to life long residents of the island. While the Veteran may sincerely believe that exposure to toxins while training on Vieques caused his diabetes and chronic lymphocytic leukemia, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has diabetes mellitus and chronic lymphocytic leukemia due to his alleged toxic exposure in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disabilities is not competent evidence and is entitled to low probative weight. In sum, there is simply no competent evidence establishing a relationship between the Veteran's claimed disabilities and service and entitlement to service connection for diabetes mellitus and chronic lymphocytic leukemia must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in March 2004, January 2006, and February 2006. These letters informed the Veteran of what evidence is required to substantiate his claims, as well as of VA and the Veteran's respective duties for obtaining evidence. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran submitted private medical records and news articles about Vieques Island. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that the Veteran's diabetes mellitus and chronic lymphocytic leukemia are related to his military service is his own unsupported lay statements. Accordingly, the Board finds that referral for a VA medical examination is not warranted. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure, is denied. Entitlement to service connection for chronic lymphocytic leukemia, to include as secondary to herbicide exposure, is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs